THE NATURAL CATASTROPHES HANDBOOK
AN OVERVIEW AND JURISDICTIONAL SURVEY OF
SUBROGATION ISSUES IN THE DISASTER CONTEXT
Prepared by:
John W. Reis, co-chair
Natural Catastrophe Task Force
with assistance from:
Sean P. O’Donnell, co-chair, Natural Catastrophes Task Force
Paul A. Grinke, member, Natural Catastrophes Task Force
Jeremy S. Baker, member, Natural Catastrophes Task Force
www.cozen.com
Atlanta • Charlotte • Cherry Hill • Chicago • Dallas • Denver
Las Vegas* • London • Los Angeles • New York • Newark
San Diego • San Francisco • Seattle • Washington, D.C.
West Conshohocken • Wichita • Wilmington
*Affiliated with the Law Offices of J. Goldberg & D. Grossman.
November 2003
Table of Contents
I.
INTRODUCTION
3
II.
PARTICULAR FORMS OF CATASTROPHIC LOSS
A.
Hurricanes
B.
Tornadoes
C.
Wildland Fires
D.
Floods and Flashfloods
E.
Severe Winter Storms
F.
Earthquakes
G.
Sinkholes
3
3
4
5
6
7
7
8-10
III.
OVERVIEW OF THE SUBROGATION ISSUES
A.
Liability of Adjoining Landowners
B.
Trespass and Nuisance
C.
The “Act of God” Defense
D.
Government Liability
E.
Maritime Law
10
10
11
12
12
13
IV.
RESOURCES
A.
Publications
B.
Websites
C.
Experts
14
14
15
15
V.
SURVEY OF CASES IN THE 50 STATES AND D.C.
16-107
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I.
INTRODUCTION
This is a guideline to legal recovery against third parties in the natural disaster context. Section
II discusses the various types of disasters and their particular liability scenarios. Section III
provides an overview of the main legal theories applicable in the storm context. Section IV
provides a list of disaster resources. Section V provides a survey of case law across the country
on the main legal issues of the duty of an adjoining landowner, the Act of God defense, and
governmental liability for drainage and road conditions.
II.
PARTICULAR FORMS OF CATASTROPHIC LOSS
This section provides a general description of each of the more common, significant natural
disasters, with some specific planning considerations for each type of storm. These planning
considerations apply primarily to businesses, building landlords, and building tenants, though
some apply to any property owner including homeowners. A third party’s failure to follow some
or all the considerations can, in some circumstances, form the basis of a cause of action against
that party.
Hurricanes
Hurricanes are severe tropical storms with winds that rotate counter clockwise and reach
sustained levels of at least 64 knots (74 miles per hour). They develop over warm tropical
oceans and can produce torrential rains and flooding. They can also spawn tornadoes. The
winds can reach 160 miles per hour and extend inland for hundreds of miles causing tremendous
property damage along the seaboard states. The hurricane season lasts from June through
November. Satellite systems and hurricane hunters provide ready information on the
development of hurricanes over the ocean. The National Hurricane Center in Miami will issue
hurricane watches and warnings soon as soon as a hurricane appears to be a threat. A hurricane
watch will typically provide advance warning one to two days before the hit. Lightning strikes
are common in the course of a hurricane, often resulting in fires. If the structure was improperly
equipped with lightning strike protection or fire protection, an action may lie against the
architects, contractors, or others that failed to provide, or install, such equipment. When feasible,
an aerial photograph of the structure and its surrounding structures should be taken.
Liability Scenarios
Most liability scenarios involve claims that the wind conditions were below the level of a
hurricane and that the property in question failed to conform with code requirements, usually in
the range of 70 to 90 miles per hour. In such cases, liability is usually straightforward as long as
the claim is supported by experts who can opine on the standard of care in construction and in
the degree of force applied to that construction. In cases where the damage could have been
mitigated even in the face of a bona fide hurricane, other possible theories may also be available.
For example, consider the property owner who fails to close its garage door, resulting in the roof
blowing off – a condition that could have been prevented if the garage door had been left closed.
If neighboring landowners incur damage from the debris of that home, a possible claim may lie.
Other theories may include lack of post-disaster governmental response, e.g., failure to install
new stop signs or traffic signals in an adequate time. It is important to analyze the degree of
damages to surrounding structures to assess how well they held up to similar conditions.
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Things to Consider
hWhether the facility was inspected for integrity by a structural engineer, especially awnings
and roofing systems.
hCode compliance during original construction or major renovations.
hWhether the windows were protected, preferably with permanent storm shutters or with 5/8’
marine plywood.
hWhether warning and evacuation procedures were established and followed.
hWhether shutdown procedures were established and followed.
hWhether backup systems were in place and operational, including:
Portable pumps to remove flood water
Alternate power sources such as generators or gasoline-powered pumps
Battery-powered emergency lighting
hWhether plans to protect or move records or computer data were established and followed.
Tornadoes
Tornadoes are storms with violent whirling winds that extend from thunderstorm clouds down
toward the ground. The winds can reach 300 miles per hour, uprooting trees, buildings, and
other objects and turning them into devastating projectiles in the process. They can create paths
of damage over a mile wide and fifty miles long. They form with little advance warning. Every
state is susceptible to potential tornadoes, but they occur most often in the Midwest, Southeast
and Southwest. Auditoriums, cafeterias, and gymnasiums that are covered with a flat, wide-span
roof are not considered safe shelter areas. The Fujita Tornado Damage Scale measures the
intensity of a tornado. Developed in 1971 by T. Theodore Fujita, the Fujita scale categorizes the
storm on a scale of F0 (winds less than 73 mph) to F5 (winds of 261-318 mph). An F1 tornado
(73-112 mph) will cause moderate damage, such as peeling the surface off a roof, overturning
mobile homes, and blowing cars off the road. An F2 tornado (113-157 mph) causes considerable
damage, such as tearing roofs off frame houses, uprooting trees, lifting cars off the ground, and
demolishing mobile homes. An F3 tornado (158-206 mph) causes severe damage, such as
tearing away walls and roof of well-built homes, overturning trains, uprooting forest trees, and
throwing cars. An F4 tornado (207-260 mph) causes devastating damage, such as leveling
houses, blowing away buildings, and turning cars into missiles. An F5 results in incredible
damage, turning nearly everything in its path into missiles. Precise wind speeds are difficult to
verify without a thorough analysis of the damage left in the tornado’s path. Use of weather
experts in conjunction with structural engineers is often critical.
Liability Scenarios
As with hurricanes, most liability scenarios involve claims that the wind conditions were below
the level of a tornado and that the property in question failed to conform with code requirements
for a certain level of wind. In cases of a bona fide tornado, similar theories of liability to the
hurricane scenario may also be available, though they are more difficult to establish given the
rapid movement and unpredictability of a tornado. In most tornado cases, it will be possible to
uncover a path of the tornado. If the damaged structure is outside that path, it is possible to make
the case that the structure was only subjected to partial impact.
Things to Consider
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hWhether “spotters” were designated to look out for approaching storms.
hWhether protective areas were established underground or in:
Small interior rooms on the lowest floor and without windows
Hallways on the lowest floor away from doors and windows
Rooms constructed with reinforced concrete, brick or block with no windows and a heavy
concrete floor or roof system overhead
hWhether tornado drills were established and followed.
Wildland Fires
Wildland fires are quasi-natural events. They can arise both from natural forces, as from
lightning, and from human hands, accidental or otherwise. Most wildland fires are relatively
harmless and, indeed, are prescribed by land managers – governmental and private -- in an effort
to stimulate biotic processes and/or reduce the potential fuel load of dried wildlands should
lightning or errant human hands strike. Whether a minor wildland fire will become catastrophic
depends upon such factors as wind, temperature, humidity, slope, topography, and the
surrounding fuel load. Strong winds can carry burning embers or sparks to other areas, causing
spot fires, or can push the flames toward new fuel sources. Wind can also dry out the
surrounding fuel sources. The convection currents of wildland fires can also create additional
winds, thus fanning their own flames. Solar heating affects the spread of wildland fires by
speeding up the time it takes for surrounding fuel loads to reach their ignition point. Humidity
affects the spread in that the lower it gets, the less moisture there is to dampen the fuel load.
Topography can affect the spread in several ways. The shape of the land determines how much
sunlight or shade it gets and how much wind gets through. Rock formations can affect the
amount of fuel that can grow. Certain natural or manmade barriers can stop or slow the spread,
including highways, boulders, and bodies of water. Elevation and slope can contribute to how
quickly the fire will reach the crest of the land form. Fires that start at the bottom of the slope
will preheat the uphill fuels by the rising air, increasing the chances of ignition. Fires that start
uphill can also roll downward when burning material drops by the force of gravity. In many
cases, it can be useful to take an aerial photograph to show the path of the spread for later use at
trial.
Liability Scenarios
The primary theories of liability in wildland fire cases will involve government liability for
inadequate prevention and inadequate response. Other theories include failure of an adjoining
landowner to act reasonably in order to prevent the spread, e.g., failure to conform to the items
set forth below.
Things to Consider
hWhether the owner was aware of the history of wildfires in the area.
hWhether the roof and exterior had been checked for non-combustible or fire resistant materials
such as tile, slate, sheet iron, aluminum, brick, or stone.
hWhether the roof surfaces and gutters had been cleared of pine needs, leaves, branches, and
other combustible materials.
hWhether a “fuel break” had been created around all structures by clearing away foliage or
other combustibles (e.g., picnic tables)
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hWhether the flue opening of every stovepipe or chimney had been protected with a noncombustible screen with mesh (preferably with openings no larger than 1/2 inch in diameter).
hWhether the flue openings had been cleared of any foliage (roughly within ten feet).
hWhether the trees and bushes had been spaced away from the structure or surrounding
vegetation.
hWhether tree branches less than 15 feet high had been pruned away.
hWhether gasoline and propane had been stored in approved containers away from occupied
buildings.
hWhether the roads and driveways were widened to approximately 16 feet or more.
hWhether fire equipment and tools had been kept on hand, such as:
Extinguishers
Ladder long enough to reach the roof
Shovel
Rake
Water buckets.
hWhether garden hoses had been kept connected to the outlets and were readily accessible.
Floods and flash floods.
Of all the natural disasters, floods are perhaps the most common and widespread throughout the
states. Most floods develop from spring rains, heavy thunderstorms, or winter snow thaws.
They often develop slowly over a period of days. Flash floods, however, come without warning,
descending upon communities in a crash of water in mere minutes, usually from intense storms
or dam failure.
Liability Scenarios
These will often involve arguments that the contractor and/or landowner failed to construct or
protect the property in accordance with the planning considerations outlined above.
Things to Consider
hWhether the owner or developer had asked the local emergency management office whether
the facility was located in a flood plain.
hWhether the owner or developer inquired about the history of flooding in the area.
hWhether the owner or developer inquired of the elevation of the facility in relation to streams,
rivers and dams.
hWhether a flood-proofing feasibility study had been conducted, looking into such things as:
Protecting windows, doors, and other openings with bricks, blocks, flood shields, or other
water-resistant materials.
Equipping water and sewer lines with check valves.
Sealing or reinforcing walls to resist water seepage or pressure.
Protecting equipment or work areas with water-tight walls.
Building outdoor floodwalls or levees to protect the facility, without causing water
diversion to neighboring property owners.
Elevating the facility on walls, columns or compacted fill.
Installing permanent watertight doors
Constructing movable floodwalls
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Installing permanent pumps to remove flood waters
Stacking sandbags against building walls.
Constructing a double row of walls with boards and posts to create a "crib," then filling
the crib with soil
Constructing a single wall by stacking small beams or planks on top of each other
hWhether backup systems had been established or followed, including:
Portable pumps to remove flood water
Alternate power sources such as generators or gasoline-powered pumps
Battery-powered emergency lighting
hWhether the community had engaged in flood control projects.
hWhether community had developed an emergency plan and evacuation routes.
hWhether warning and evacuation procedures for the facility had been developed and followed.
hWhether there had been flood watches and warnings.
hWhether a plan had been developed and implemented for moving records and equipment to a
higher location.
Severe Winter Storms.
Winter storms can bring heavy snow, heavy winds, hail, ice, and freezing rains. Each region is
equipped to handle them differently depending on the historical frequency and severity the
storms. When they hit, however, they can shut down even the most prepared of cities.
Liability Scenarios
Violation of applicable roofing and other building and construction codes or standards. Lack of
adequate post-disaster response. In snow accumulation cases, it is extremely useful to take
measurements of the depth of snow as soon a possible to calculate the load.
Things to consider
hWhether there had been storm warnings and watches.
hCode compliance during construction or major renovations.
hWhether a backup power source had been established for critical operations.
Earthquakes
Earthquakes are perhaps the most sudden and unpredictable of the natural disasters. Though
they are mostly confined to the states west of the Rocky Mountains, the most violent earthquakes
in history have occurred in the central United States. In addition to damaging buildings and
utility services, they can trigger avalanches, landslides, flash floods, and tsunamis. They are
often followed by aftershocks that can last for weeks.
Liability Scenarios
Similar to those described in the Hurricane section, above.
Things to consider
hWhether the facility's vulnerability to earthquakes had been assessed.
hWhether the owner or developer had asked local government agencies for seismic information
for the area.
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hCode compliance during construction or major renovations
hWhether strengthening measures had been developed and prioritized, such as:
Adding steel bracing to frames or suspended ceilings
Adding sheer walls to frames
Strengthening columns and building foundations
Replacing unreinforced brick filler walls
Installing safety glass where appropriate
Securing large utility and process piping
hWhether non-structural systems had been inspected, such as air conditioning, communications
and pollution control systems.
hWhether the facility had been inspected for any item that could fall, spill, break or move
during an earthquake and taking steps to reduce these hazards.
hWhether large and heavy objects had been moved to lower shelves or the floor.
hWhether heavy items had been secured, such as shelves, filing cabinets, tall furniture, desktop
equipment, computers, printers, copiers and light fixtures.
hWhether copies of design drawings of the facility were kept available to be used in assessing
the facility's safety after an earthquake.
hWhether plans had been developed and followed for handling and storing hazardous materials
and storing incompatible chemicals separately.
Sinkholes
A sinkhole is a depression in the land. There are four basic types of sinkholes: solution sinkhole,
cave collapse sinkhole, subsidence sinkhole, and buried sinkhole. Sinkholes occur when the land
under the surface forms spaces or caverns that collapse under pressure of the land above it. They
occur most often in Florida and Texas, but also affect Alabama, Missouri, Kentucky, Tennessee,
and Pennsylvania. The substrata of land is usually limestone, carbonate rock, salt beds, or rocks
that are susceptible to dissolving when groundwater circulates among them. As the groundwater
erodes the rock or salt beds, spaces or caverns develop underground. The land above the caverns
will usually stay intact for a period of time with no external sign of a problem underneath.
However, if the space gets too big, the land above it can slowly subside and/or suddenly
collapse. Sometimes the collapse is small and benign, as in an open field. Sometimes, however,
the collapse covers a wide area, enveloping a roadway or swimming pool or an entire row of
buildings. The process of underground limestone erosion generally begins with the presence of a
conveying path by which the eroded materials will travel away from the limestone to create a
cavity. Dissolved limestone is more inclined to travel along the sand than clay because of the
cohesive properties of clay. Another contributing factor is if there are two different water tables
near each other. A significant downward gradient between one water table to another water table
increases the chances of downward migration of eroded materials. If the soil is comprised of
stiff and intact clays, this reduces the possibility of downward migration. Predicting the location,
timing, and likelihood of sinkhole activity is extremely difficult based on current technology and
data. For example, when a structure begins developing cracks from ground subsidence, it is
difficult to directly evaluate the underlying soil for the presence or potential for conveying
channels to transmit soil particles. The ground subsidence could be the result of clayey or plastic
soils or degrading organic materials, as opposed to sinkhole-related activity. Sinkhole indicators
include an unusual loss of drilling fluid circulation in the soil and the presence of abnormally soft
subsoil and rock conditions. To narrow down the cause, different experts use different
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techniques and combinations of techniques, which may include: history of prior confirmed
sinkhole activity in the vicinity, standard penetration test (SPT) borings to test the soil’s contents
and properties, penetrometer probe soundings, ground penetrating radar investigation, a floor
slab survey to analyze sloping and depressions, installing crack monitors to measure relative
crack movement, a capacitatively coupled resistivity test (CCR) to locate raveled soils.
Liability Scenarios
In many states, a statute of repose will often prevent a claim of liability against the original
contractor or geologist if the property is older than the statutory period. For example, Florida has
a 15-year statute of repose for improvements to real property. If the insured property was
surveyed and constructed more than 15 years ago, there is very little chance of establishing
liability against the contractor or geologist that constructed and/or surveyed the property in that
state. For cases within the repose period, there appear to be no specific code requirements to
either conduct a geological survey for potential sinkholes or construct a building in such a way as
to protect against sinkhole collapse. However, it is a general requirement in the industry that the
contractor hire a firm to conduct a soil sample for suitability for construction. If, in the course of
that soil survey, the geologist uncovers evidence of two different water tables and/or a conveying
channel creating a likelihood of a sinkhole, such information should be reported to the
contractor. If the geologist fails to convey that information and/or if the contractor fails to take a
reasonable precaution against the potential for sinkhole activity (e.g., constructs a building
negligently and/or conceals the structural problems from the buyers), there may be a viable
theory of liability against such party. Accordingly, when analyzing a sinkhole case, the first
question should be the age of building, dating back from the certificate of occupancy. If it is
within the repose period, the next inquiry should be the identity of the general contractor who
built the property and the identity of the geological company, if any, who conducted the soil
survey. This will usually require a check of the county records. There may turn out to be nothing
in the soil survey that would have put the surveyor and contractor on notice of a potential
sinkhole, in which case there is little basis to institute a subrogation claim.
Conceivably, there may be other liability scenarios. For example, suppose a property
owner/landlord becomes aware of a potential sinkhole by virtue of either a neighboring sinkhole
or by virtue of a geological survey of a nearby property. Suppose further that the property owner
fails to communicate this information to its tenants or to a subsequent purchaser. If a sinkhole
occurs, the tenants or subsequent purchaser may have a basis to assert a claim of concealment.
However, such claims can be difficult to prove, as the plaintiff will generally need to show that
the owner had actual knowledge of a confirmed sinkhole and that the tenant/subsequent
purchaser relied on the false statement.
Things to consider
hWhether the facility's vulnerability to sinkholes had been assessed.
hWhether the owner or developer had asked local government agencies for sinkhole activity in
the area.
hWhether a geologist had inspected the soil.
hWhether boring data was available
hWhether strengthening measures were considered, such as:
- Adding grout pipes that penetrate at least 150 feet below ground surface.
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- Installing underpins, after the grouting program, to transfer the load of the structure
through the organic material to the soils beneath them.
- Installing concrete slabs that have contraction joints spaced at intervals about equal to
the slab width (slabs wider than about 10 to 12 feet should have a longitudinal joint
down the center, if possible; contraction joints to concrete slabs should be
approximately square; rectangular sections should not have length to width ratios of
more than 1.5).
III.
OVERVIEW OF THE SUBROGATION ISSUES
Most liability scenarios in the storm context involve claims in the peripheral areas of the storm,
where the winds or floods were within the level of force the structure was expected to withstand.
In such cases, liability is premised on the argument that the property in question failed to
conform with building codes or industry practice. Liability may be relatively straightforward in
such claims as long as the claim is supported by experts who can opine on the standard of care in
construction and the degree of force applied to that construction. It will be important for those
experts to analyze the degree of damages to surrounding structures to assess how well they held
up to similar conditions.
In cases of hurricanes and tornadoes, it will be important to look for a path. If the damaged
structure is outside that path, it is possible to make the case that the structure was only subjected
to partial impact. When feasible, an aerial photograph of the structure and its surrounding
structures should be taken. In cases involving direct-path damage from a true hurricane or other
storm, other possible theories may also be available. For example, consider the property owner
who fails to “batten down the hatches,” e.g., fails to protect the windows or close the garage
door. Such failure can result in the roof blowing off from uplift – a condition that could have
been prevented if these openings had been properly secured. If neighboring landowners incur
damage from the debris of that home, a possible claim may lie for improperly securing the
structure. Other theories may include lack of post-disaster governmental response, e.g., prestorm failure to maintain sewage systems or post-storm failure to install new stop signs or traffic
signals within a reasonable time after the storm.
Regardless of whether the claim is a peripheral damage or direct damage case, some basic
theories of liability can be used to make the case.
A.
Liability of Adjoining Landowners for Debris Damage
A common subject of legal problems for disaster victims involves rights and responsibilities
relating to fallen trees and other storm debris. Determining liability depends on an analysis of
duty, breach of duty, and proximate cause.
1.
Duty
The common law rule absolves the landowner of any duty to find or remedy naturally occurring
conditions; the rule is designed to avoid burdening rural landowners with inspection of large
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unpopulated woodlands. See generally Keeton, Prosser and Keeton on the Law of Torts, § 57
(5th ed. 1984). However, in most jurisdictions, a property owner owes a duty of care to maintain
man-made structures, cultivated trees, and other pieces of human-cultivated landscaping, and
naturally occurring objects which he/she knows are in an unreasonably dangerous condition.
The duty generally extends to lawful visitors, drivers on neighboring public roads, and adjoining
property owners, so long as the landowner had actual or constructive knowledge of the
dangerous condition. In addition, courts in an increasing number of jurisdictions will impose the
added duty of inspecting the property for potential defects or hazards. Some have abolished the
common law exception for naturally occurring hazards regardless of whether the setting was
rural or urban. See, e.g., Sprecher v. Adamson Cos., 30 Ca.3d 358, 636 P.2d 1121 (1981) (tree);
Dudley v. Meadowbrook, Inc., 166 A.2d 743 (D.C. Mun. Ct. App. 1960) (tree); see also
Annotation, “Tree Limb Falls onto Adjoining Private Property: Personal Injury and Property
Damage Liability”, 54 A.L.R. 4th 530, 541 (1987); Annotation, “Failure to Exercise Due Care to
Prevent Fall of Tree”, 27 AM. JUR. Proof of Facts 639, § 6, at 657-59; Westlaw headnote
Negligence 34.
2.
Breach
The property owner is required to take reasonable precautions against damage to neighboring
property caused by a storm or other natural disaster. The extent of precautions necessary
depends upon the likelihood and probably severity of the disaster and the efficacy and cost of
precautions.
3.
Proximate Cause
Assuming that the property owner has been negligent in some manner, the property owner may
escape liability of the damage would have occurred even in the absence of the property owner’s
negligence. However, if the property owner’s negligence concurred in causing the disaster, then
the property owner can be held liable. If the disaster is so unexpected as to be deemed
unforeseeable, then the disaster is a superceding cause, relieving the property owner of liability.
B.
Trespass and Nuisance
Even where actual negligence cannot be proven, a claim for trespass or nuisance may lie. A
trespass is generally defined as an unauthorized entry onto property which results in interference
with the property owner’s possessory interest therein. The owner must prove an invasion of the
land that interfered with the right of exclusive possession of the land as a direct result of some
act committed by the defendant. Any physical entry upon the land constitutes such an invasion,
whether the entry is “walking upon it, flooding it with water, casting objects upon it, or
otherwise.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 13, at 70 (5th ed.
1984). Similarly, nuisance is any act that unreasonably interferes with the quiet use and
enjoyment of the land of another. Unlike trespass, however, a nuisance can occur without actual
physical entry upon the land. Sounds, smells, and other detractors can suffice.
In the natural disaster context, trespass or nuisance claims can provide a basis for third-party
liability even when “the act” of that third party was not technically “negligent.” In Akers v.
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Mathieson Alkali Works, 151 Va. 1, 144 S.E. 492 (1928), for example, the plaintiff sued under
theories of continuing trespass and nuisance for leakage of chemical “muck” from the
defendant’s storage basin. Defendant argued that the right of recovery was predicated upon a
finding of negligence by defendant. The Virginia Supreme Court rejected that argument, stating:
The law requires that every person so use his own property as not to injure the
property of another …. When defendant permitted the muck to escape from its
land and injure land of the plaintiff, without his fault, defendant was liable for the
damages sustained by the plaintiff. The loss in such cases must be borne by
plaintiff or defendant and it seems just that it fall upon the defendant by whose
conduct it was made possible.
C.
The Act of God Defense
The general rule in most states is that an Act of God is no defense if the damages occurred in
concurrence with another act. The principle has been stated succinctly as follows: “He whose
negligence joins with the act of God in producing injury is liable therefor.” 1 AM. JUR. 2d, Act of
God, § 11.
D.
Governmental Liability
Every disaster will involve some aspect of governmental activity. Disasters affect the roadways,
sewage systems, storm drains, power lines, firefighting activities, and so forth. However, each
state has peculiar rules on whether and to what extent a governmental entity may be liable in tort
for such damages. Historically, the common law doctrine has accorded sovereign immunity to
most governmental entities under the belief that governments would be immobilized if they had
to defend all of their actions. Today, most American governmental entities have limited or
abrogated sovereign immunity by either legislative or judicial action. However, even where
sovereign immunity has been abrogated, government entities are still immune from liability for
their “discretionary or governmental acts,” e.g., the decision to plan roads or build buildings or
install sewage systems. The immunity is often waived for the government’s “proprietary or
ministerial acts,” e.g., actions performed in the course of maintaining roads, buildings, sewage
systems and so forth. The degree of governmental immunity is often established by statute
framework or by judicial doctrine, such the public duty doctrine and the special duty doctrine.
Under the public duty doctrine, government officials or agencies are deemed to have no specific
duty to the public and are thus not liable for such actions as allowing a criminal to escape during
a chase. However, an exception to the public duty doctrine arises if a special relationship
developed between the government actor and the victim sufficient to create a special or particular
duty to the victim. See, e.g., Gazette v City of Pontiac, 41 F.3d 1061, 1994 F.E.D.App. 405P.
(1994, CA.6 Mich.); Warren v District of Columbia, 444 A.2d 1 (1981, Dist. Col. App.);
Davidson v City of Westminster, 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894 (1982);
Biloon’s Electrical Service, Inc. v Wilmington, 401 A.2d 636, affd on other grounds (Del. Sup.)
417 A.2d 371 (1979, Del. Super.); Florence v Goldberg, 44 N.Y.2d 189, 404 N.Y.S.2d 583, 375
N.E.2d 763 (1978); Chapman v Philadelphia, 290 Pa. Super. 281, 434 A.2d 753 (1981).
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Presenting a claim against a government will often require compliance with specific notice
requirements. For example, the procedures for filing a tort claim against the federal government
are set out in 28 U.S.C. § 2401 of the Federal Tort Claims Act, which requires that the claim be
submitted in writing to the appropriate federal agency within two years after the claim accrues.
If the federal agency sends a written denial letter, the claimant must initiate suit within six
months.
Claims against governmental entities often have damage limits, typically of around $100,000.
The Oregon Revised Statute 30.270(a) has a limit as low as $50,000 per occurrence for property
damage.
E.
Maritime Law
Coastal storms will often involve at least some damage to marinas, docks, and other structures
along the coastline, often implicating federal maritime law. Admiralty jurisdiction will be
triggered if the loss arises out of the storage and maintenance of boats in a marina on navigable
waters. See Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).
The elements of a negligence claim under maritime law essentially mirror the common law
elements: duty, breach, proximate cause, and damages. Burklow & Associates v. Belcher, 719
So. 2d 31 (Fla. 1st DCA 1998)(citing Rodi Yachts, Inc. v. National Marine, Inc., 984 F.2d 880
(7th Cir. 1993); Complaint of Paducah Towing Co., Inc., 692 F.2d 412 (6th Cir. 1982); United
States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947); The Charles H. Sells, 89 F.2d 631 (2d
Cir. 1937); and Restatement (Second) of Torts §§ 283, 289-93 (1965)). In addition, the standard
of conduct required of a reasonable person may be established by a legislative enactment.
Burklow, 719 So. 2d at 35 (citing Restatement (Second) of Torts §§ 285-86 (1965)).
Determining the duty element, however, requires a balancing between (1) the likelihood of the
disaster causing injury to others, (2) the potential extent of the injury, and (3) the expense and
effort of adequate precautions to avoid the occurrence. See Kossick v. United Fruit Co., 365 U.S.
731, 81 S.Ct. 886, 6 L.Ed.2d 56 (1961); Romero v. International Terminal Operating Co., 358
U.S. 354, 79 S.Ct. 468, 2 L.Ed. 368 (1959); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348
U.S. 310, 75 S.Ct. 368, 99 L.Ed. 337 (1955); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct.
89, 66 L.Ed. 210 (1921).
In states with statutory guidelines governing the conduct of marina and boat owners, the question
can arise as to whether the state law is pre-empted by federal maritime law. Under the
“maritime-but-local” doctrine, federal law will generally govern unless (1) the matter is one
which has great local significance and (2) the state law to be applied does not threaten the
uniformity of federal maritime law. Burklow, 719 So. 2d at 35.
For example, in Burklow & Associates v. Belcher, 719 So. 2d 31 (Fla. 1st DCA 1998), sixteen
boat owners sought the protection of Florida Statute §327.59 when they were sued by a marina
owner for damages allegedly caused by the boat owners' failure to move vessels from marina
before a hurricane had moved ashore. The statute barred marina owners from forcing boat
owners to remove their boats from a marina and thus protected boat owners from liability for
failure to remove the boats. In upholding the state statute vis a vis maritime law, the court found
13
that protection of lives during the threat of a hurricane was “a matter of paramount local
concern” and that the statute did not threaten the uniformity of federal maritime law. Id. at 36.i
Accordingly, to the extent that the marina owner had knowledge of the issuance of a hurricane
watch or warning, any claim for damages based on a theory that the boat owners failed to
evacuate their boats was barred by the state statute. Id. at 36. See generally United States v.
State Road Department of Florida, 189 F.2d 591 (5th Cir. 1951); The Havana, 89 F.2d 23 (2d Cir.
1937); United States v. Bruce Dry Dock Co., 65 F.2d 938 (5th Cir. 1933); Ladner v. Bender
Welding and Machine Co., Inc., 336 F.Supp. 1264 (S.D. Miss. 1971); Twery v. Houseboat Jilly’s
Yen, 267 F.Supp 722 (S.D. Fla. 1967).
The court was careful to note, however, “that boat owners have a duty to take all other
reasonable precautions to protect the marina from harm in the face of the hurricane threat,
including the duty to properly moor the boat, the duty to remove loose objects from the deck, and
the duty to properly tie down anything that cannot be removed from the deck and may cause
damage.” Burklow, 719 So. 2d at 37 n. 5.
IV.
RESOURCES
This section provides the following information sources:
A.
Publications
The Federal Emergency Management Agency (FEMA) provides numerous publications on their
website, www.fema.gov. Hardcopies can also be obtained by writing to: FEMA, Publications,
P.O. Box 70274, Washington, DC 20024. Useful publications include:
- Disaster Mitigation Guide for Business and Industry (FEMA 190) --Technical planning
information for building owners and industrial facilities on how to reduce the impact of natural
disasters and man-made emergencies.
- Principal Threats Facing Communities and Local Emergency Management Coordinators
(FEMA 191) -- Statistics and analyses of natural disasters and man-made threats in the U.S.
- Floodproofing Non-Residential Structures (FEMA 102) -- Technical information for building
owners, designers and contractors on floodproofing techniques (200 pages).
- Non-Residential Flood-proofing -- Requirements and Certification for Buildings Located in
Flood Hazard Areas in Accordance with the National Flood Insurance Program (FIA-TB-3).
- Building Performance: Hurricane Andrew in Florida (FIA 22) -- Technical guidance for
enhancing the performance of buildings in hurricanes.
- Building Performance: Hurricane Iniki in Hawaii (FIA 23) -- Technical guidance for reducing
hurricane and flood damage.
- Answers to Questions About Substantially Damaged Buildings (FEMA 213) -- Information
about regulations and policies of the National Flood Insurance Program regarding substantially
damaged buildings (25 pages).
- Design Guidelines for Flood Damage Reduction (FEMA 15) -- A study on land use, watershed
management, design and construction practices in flood- prone areas.
- Comprehensive Earthquake Preparedness Planning Guidelines: Corporate FEMA 71) -Earthquake planning guidance for corporate safety officers and managers.
14
Publications from other sources include:
-Mullins, G.W. 1999. Wildfire–Feel the Heat Study Guide. Bethesda, MD: Discovery Pictures,
Inc.
- National Wildfire Coordinating Group. 1994. "Introduction to Wildland Fire" Behavior S-190,
Student Workbook NFES 1860. Boise, ID: National Interagency Fire Center.
- Pyne, S.J., P.L. Andrews, and R.D. Laven. 1996. Introduction to Wildland Fire, 2nd Edition.
New York: John Wiley & Sons, Inc.
B.
Websites
National Oceanic and Atmospheric Administration website: www.noaanews.noaa.gov
National Weather Service: www.nws.noaa.gov
Rainfall data: http://www.srh.noaa.gov (gives rainfall and other data for a particular area, and
narrows it down to specific cities.)
Mapping of precipitation: http://www.srh.noaa.gov/lub/wx/precip_freq/precip_index.htm
(provides maps which classify rainfall events by time interval -- 30 minute, 1 hour, 2 hour, 3
hour, 6 hour, 12 hour, 24 hour -- and according to severity -- 1 year, 2 year, 5 year, 10 year, 25
year, 50 year and 100 year).
National Climatic Data Center: www.ncdc.noaa.gov
The Weather Channel: www.weather.com
Accuweather.Com: www.accuweather.com
The Weather Network: www.theweathernetwork.com
Weather Underground: www.wunderground.com
Intellicast Weather: www.intellicast.com
Online Meteorology Guide: http://ww2010.atmos.uiuc.edu
World Climate: www.worldclimate.com
Automated Weather Service: www.aws.com
The Weather Center/WeatherWatch.Com: www.weatherwatch.com
WeatherNet: http://cirrus.sprl.umich.edu/wxnet
WeatherConcepts: www.weatherconcepts.com
National Interagency Fire Center: www.nifc.com
Center for Analysis and Prediction of Storms, Univ. Oklahoma: www.caps.ou..edu
C.
Experts
Cozen O’Connor maintains a database of forensic experts, including engineers, contractors,
meteorologists, and numerous others. Recommendations for experts are available from Cozen
O’Connor upon request.
15
V.
SURVEY OF CASE LAW IN THE 50 STATES
Note: The below case law excerpts are quoted directly from West’s Headnotes, except for discussions of the law in
Alabama, the District of Columbia, Florida, Georgia (first half of the municipal liability section), North Carolina, and
Virginia which were written by the author of this Handbook. The notice provisions and monetary liability limits of each
state are not discussed, except for those of Alabama, Florida, North Carolina, and Virginia.
Alabama
1.
Landowner’s Duty to Inspect/Prepare
Alabama subscribes to an “ordinary care” standard. Adjoining landowners have a duty to
exercise ordinary care not to cause or permit condition to exist that will result in injury to others
who are rightfully using or occupying adjacent property. Bradford v. Universal Const. Co., Inc.,
644 So.2d 864 (Ala. 1994). The court defines “ordinary care" as requiring the landowner do no
affirmative act that will create an unsafe condition in the public way fronting his or her property.
Id.
2.
Act of God Defense
Alabama law describes an “Act of God” as an accident produced by physical causes which are
irresistible, or which occurs only when there exists the intervention of such an extraordinary,
violent and destructive agent, that by its very nature raises a presumption that no human means
could resist its effect. Bradford v. Universal Const. Co., Inc., 644 So.2d 864 (Ala. 1994). For
the Act of God defense to apply, defendant must show that the injury was due directly and
exclusively to that Act of God, i.e., to natural causes without human intervention, and which
could not have been prevented by exercise of reasonable care and foresight. Id. An act which
may be prevented by exercise of ordinary care is not an "act of God" which would immunize
tort-feasor from liability. Id. See also General Motors Corp. v. Edwards, 482 So.2d 1176 (Ala.
1985); Bradford v. Stanley, 355 So.2d 328 (Ala. 1978) (“Act of God” only applies to events so
extraordinary in nature that history of climatic variations and other conditions in particular
locality affords no reasonable warning of them.).
3.
Governmental Liability
a.
6-Months to Submit Notice of Claim
Under Alabama Code § 11-47023, all tort claims against a municipality shall be presented to the
city clerk within six months of the loss. The statute reads:
11-47-23. Limitation periods for presentation of claims against municipalities.
All claims against the municipality (except bonds and interest coupons and claims
for damages) shall be presented to the clerk for payment within two years from
the accrual of said claim or shall be barred. Claims for damages growing out of
torts shall be presented within six months from the accrual thereof or shall be
barred.
16
The notice must be sworn and must set forth very specifically the date and time of day of the
incident, the location of the incident, the manner of injury, and the amount of the damages.
Alabama Code §11-47-192. This statute reads:
11-47-192. Filing of statement as to manner of injury, damages claimed, etc.
No recovery shall be had against any city or town on a claim for personal injury
received, unless a sworn statement be filed with the clerk by the party injured or
his personal representative in case of his death stating substantially the manner in
which the injury was received, the day and time and the place where the accident
occurred and the damages claimed.
However, cases have held that this provision is only applicable to personal injury claims, not to
mere property damage claims. Coffee County Commission v. Smith, 480 So. 2d 1194 (Ala.
1985), City of Huntsville v. Goodenrath, 13 Ala. App. 579, 68 So. 676 (1915).
Plaintiff can file a lawsuit without providing the statutory notice, so long as the suit is
commenced within six months of the loss. Browning v. City of Gadsden, 359 So. 2d 361 (Ala.
1978). Recovery is limited to the damages set forth. Perrine v. Southern Bitulithic Co., 190 Ala.
96, 66 So. 705 (Ala. 1914).
b.
Municipality Has Duty to Exercise Due Care in Construction and
Maintenance
In Lee v. City of Anniston, 722 So. 2d 755 (Ala. 1998), the Alabama Supreme Court held that a
municipality has a duty to exercise due care in construction and maintenance of its drainage
systems, analogous to the duty involved in construction and maintenance of streets. The test for
determining whether county or municipality has duty to maintain roadway is whether it has right
to control, or to participate in control, of roadway. §§Code 1975, 11-50-50 to 11-50-56. The
court stated:
Pursuant to §§ Ala.Code 1975, 11-50-50 to -56, "municipalities are authorized to
construct and maintain drainage systems." City of Mobile v. Jackson, 474 So.2d
644, 649 (Ala.1985). Although "a municipality is not required to exercise this
authority, once it does so, a duty of care arises and a municipality may be liable
for damages caused by its negligence." Id. The action of a municipality in
constructing a drainage system is, therefore, attended by a duty to exercise due
care to "avoid injury to persons and property." Sisco v. City of Huntsville, 220
Ala. 59, 60, 124 So. 95, 95 (1929). "While related to the government function of
preserving the public health, such improvement and the maintenance thereof
involves continuous management." Id. (emphasis added). See Whitworth v.
Utilities Bd. of the Town of Blountsville, 382 So.2d 557, 560 (Ala.1980); Brown
v. City of Fairhope, 265 Ala. 596, 600, 93 So.2d 419, 422 (1957).”
17
Id. at 757-58. See also Hale v. City of Tuscaloosa, 449 So.2d 1243, 1247 (Ala.1984) (City is
required by § 11-47-190 to maintain its roadways and streets in a safe manner and has a duty to
warn of a dangerous condition on or near a roadway: "[A] railroad crossing may be a hazardous
defect at or near the street, and if the City has actual or constructive notice of such a defect, it has
the duty to remedy that defect.").
c.
$100,000 Cap on Damages for Property Damages
Alabama Code § 11-93-2 states as follows:
§ 11-93-2. Maximum amount of damages recoverable against governmental
entities; settlement or compromise of claims not to exceed maximum amounts.
The recovery of damages under any judgment against a governmental entity shall
be limited to $100,000.00 for bodily injury or death for one person in any single
occurrence. Recovery of damages under any judgment or judgments against a
governmental entity shall be limited to $300,000.00 in the aggregate where more
than two persons have claims or judgments on account of bodily injury or death
arising out of any single occurrence. Recovery of damages under any judgment
against a governmental entity shall be limited to $100,000.00 for damage or loss
of property arising out of any single occurrence. No governmental entity shall
settle or compromise any claim for bodily injury, death or property damage in
excess of the amounts hereinabove set forth.
However, plaintiff can recover interest in an amount exceeding the $100,000 limit. Elmore
County Com'n v. Ragona, 561 So.2d 1092 (Ala.1990) (Nothing in the language of this section
indicates that the Legislature intended to prohibit a judgment creditor of a county from
recovering interest on his judgment, even when such a recovery, together with the recovery of
damages for bodily injury or death, would exceed $100,000.).
d.
Sewage and Drainage Systems
In Lott v. City of Daphne, 539 So.2d 241 (Ala. 1989), the court held that a municipality is not
required to construct and maintain a drainage system, but once it undertakes such such
construction, a duty arises to exercise a duty of care in the construction and maintenance of that
system. See also Locke v. City of Mobile, 2002 WL 31630708 (Ala. 2002) (citing also to
Alabama Code § 11-50-50 et seq. (1975)); Lee v. City of Anniston, 722 So.2d 755 (Ala. 1998)
(duty to exercise due care to avoid injury to persons and property once construction of sewage
system is undertaken); Garrett v. City of Vestavia Hills, 739 So.2d 46 (Ala.Civ.App. 1998)
(same); Long v. Jefferson County, 623 So.2d 1130 (Ala. 1993) (cities and counties liable
negligent operation and maintenance of sewers and drains under their control); Hendrix v. Creel,
297 So.2d 364, (Ala.,1974); City of Birmingham v. Cox, 159 So. 818 (Ala. 1935) (no absolute
duty of a municipality to provide barriers at open ditch, sewer, or drain, unless place is alongside
street and endangers travel in usual mode).
18
In Kennedy v. City of Montgomery, 423 So.2d 187 (Ala. 1982), the court provided a limited
form of immunity to a city for damage caused by water drainage onto a property owner’s land.
The plaintiff owned property downstream from water controlled by the city. The court noted that
there is a common-law right of lower property owner not to be injured by interference of an
upper property owner with the natural drainage of the water onto the lower property. However,
the court held that this rule did not apply to a lower landowner in an action against the city for
alleged negligence in maintaining drainage system.
If the municipality neither owns the sewage line nor contracted to work on the sewage line, the
municipality is not liable for damage to the sewage line that it did not cause. Thompson v. City
of Bayou La Batre, 399 So.2d 292 (Ala. 1981). In Thomspon, a contractor’s laborer was buried
alive while working in a ditch on an excavation site near a sewage line to a main trunk line.
Although the municipality had a right to inspect the connection between a property owner's
sewage line to the main trunk line, the court held that this did not create a duty of the
municipality to the contractor's laborer because the municipality neither owned the property nor
contracted for the work.
Alaska
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
Widmyer v. Southeast Skyways, Inc., 584 P.2d 1 (Alaska 1978): In order for an "act of God" to
preclude liability in negligence, two elements must be present: the occurrence alleged to be "an
act of God" must be such that it was incapable of being avoided by reasonable care or foreseen
by reasonable prudence and the result of injury must have come about without the intervention of
any human agency.
3.
Governmental Liability
Arizona
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
3.
Governmental Liability
Campbell Estates, Inc. v. Bates, 517 P.2d 515 (Ariz.App. 1973): That city required and approved
ditch did not relieve defendants of liability on account of water cast on plaintiffs' property where
defendants were not forced to build ditch and city only required it as condition precedent to
rezoning and development.
Arkansas
19
1.
Landowner’s Duty to Inspect/Prepare
Driggers v. Locke, 913 S.W.2d 269 (Ark. 1996): Under Restatement (Second) of Torts,
possessor of land in urban area is subject to liability to persons using public highway for physical
harm resulting from his failure to exercise reasonable care to prevent unreasonable risk of harm
arising from condition of trees on land near highway; danger contemplated is that not resulting
from presence of trees but from their condition, or probability that they may break and fall on
highway. Restatement (Second) of Torts § 363(2).
Hartsock v. Forsgren, Inc., 365 S.W.2d 117 (Ark. 1963): Corporation which allowed tar to
overflow into playground area could be charged with duty of anticipating likelihood that child
might get pitch on his feet but was not charged with foreseeing the chance that the child would
be burned because gasoline used in cleaning his feet was ignited.
Strange v. Bodcaw Lumber Co., 96 S.W. 152 (Ark. 1906): Where one damming water causes it
to back up beside a highway, so as to be dangerous to travelers thereon, it is his duty to do
whatever is reasonably necessary to protect the public from the danger, and this though he was
given permission by the county judge to back the water; and, if guard rails are so reasonably
necessary, it is no excuse for his not erecting them that he has no authority to erect them on the
highway, at least where he has not asked and been refused permission.
2.
Act of God Defense
Tinsley v. Cross Development Co., 642 S.W.2d 286 (Ark. 1982): If act of God concurs with
another's negligence to cause damages, negligent person is not excused from liability.
Dye v. Burdick, 553 S.W.2d 833 (Ark. 1977): Where act of God is cause of injury, but act or
omission of defendant so mingles with it as to also be an efficient and cooperating cause,
defendant is liable.
3.
Governmental Liability
Jones v. Sewer Imp. Dist. No. 3 of City of Rogers, 177 S.W. 888 (Ark. 1915): It is the duty of a
municipal corporation, to so maintain its sewer system, and the outlets thereof, so that they shall
not be a nuisance to property owners.
California
1.
Landowner’s Duty
Alpert v. Villa Romano Homeowners Assn., 96 Cal.Rptr.2d 364 (Cal.App. 2. Dist. 2000):
Landowner or possessor of land has a duty to take reasonable measures to protect persons from
dangerous conditions on adjoining land when landowner exercises possession or control over
that adjacent land. West's Ann.Cal.Civ.Code § 1714(a).
20
Barnes v. Black, 84 Cal.Rptr.2d 634 (Cal.App. 4. Dist. 1999): A landowner's duty of care to
avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned
or controlled by the landowner; rather, the duty of care encompasses a duty to avoid exposing
persons to risks of injury that occur off-site if the landowner's property is maintained in such a
manner as to expose persons to an unreasonable risk of injury off-site. The Rowland factors for
determining scope of landowner's duty of care to maintain the property so as to avoid exposing
others to unreasonable risk of injury apply regardless of whether the risk of harm is situated onsite or off- site.
Lompoc Unified School Dist. v. Superior Court, 26 Cal.Rptr.2d 122 (Cal.App.2.Dist. 1993):
Duty of occupier of real property to exercise ordinary care in use and management of his or her
land ordinarily does not extend to persons outside land, e.g., on adjacent land or highway. West's
Ann.Cal.Civ.Code § 1714(a).
Lucas v. George T. R. Murai Farms, Inc., 19 Cal.Rptr.2d 436 (Cal.App.4.Dist. 1993): Security
company's acts of protecting migrant farm workers in labor camp and banning alcohol and
prostitutes at camp did not show control of the camp and, therefore, did not impose on employer
and landowner duty to workers who were injured by fire in camp which was on property adjacent
to that of employer and landowner. Landowner and employer of migrant farm workers owed no
duty to workers who were injured by fire in camp on property adjacent to that of employer and
landowner, even though foremen apparently did not prevent workers from taking scrap materials
from ranch and even though landowner allowed workers to use its water and restrooms;
landowner and employer tried to prohibit workers from using building materials from ranch
scrap heaps, workers knew danger of using candle in the temporary structure, danger was not
latent and concealed, and foreseeability of the type of harm was questionable.
Martinez v. Pacific Bell, 275 Cal.Rptr. 878 (Cal.App.1.Dist. 1990): Requirement that property
owner use or maintain its property in such way as to avoid undue risk of harm to others on
nearby parcels cannot be extended to impose duty on owner of property to prevent intentional
torts by policing nearby areas, which it has no legal right or realistic opportunity to control, in
such a way as to lessen such risks; such extension would be wholly inconsistent with principles
underlying premises liability.
A. Teichert & Son, Inc. v. Superior Court, 225 Cal.Rptr. 10 (Cal.App.3.Dist. 1986): Owner or
possessor of land may be liable for injuries incurred by persons off the premises as result of
natural or artificial conditions on the land and activities on the land which give rise to a
hazardous condition off the premises may also result in a duty being imposed on the landowner
to remedy the hazard. Owner of asphalt plant located adjacent to state highway had no duty to
post signs or other warning devices cautioning passersby, including bicyclist who was killed by
dump truck entering plant, of frequent heavy truck traffic into and out of the plant; owner was
statutorily barred from erecting warning signs on the highway and was also prevented from
placing such signs on its own premises in view of traffic passing on the highway. West's
Ann.Cal.Vehicle Code §§ 21100, 21102, 21352, 21353, 21400, 21465, 21468.
21
Davert v. Larson, 209 Cal.Rptr. 445 (Cal.App.3.Dist. 1985): Landowner or possessor owes a
duty of care to persons who come on his property as well as to persons off the property for
injuries due to landowner's lack of due care in management. West's Ann.Cal.Civ.Code § 1714(a).
Nava v. McMillan, 176 Cal.Rptr. 473 (Cal.App.2.Dist. 1981): Duty of land owner or possessor
of land to exercise ordinary care in the management of his property usually does not extend to
persons outside the land, on adjacent property, or on a sidewalk or highway, except where the
physical harm caused to persons outside the land is a result of dangerous activities conducted on
the land, in which event a defendant is held strictly liable for the harm done.
Sprecher v. Adamson Cos., 30 Ca.3d 358, 636 P.2d 1121 (1981): Landowner liable for fall of
decaying tree regardless of whether the setting is rural or urban.
Harris v. De La Chapelle, 127 Cal.Rptr. 695 (Cal.App.2.Dist. 1976): Landowner is liable for
conditions occurring where he fails to exercise reasonable care to prevent an unreasonable risk of
harm to users of highways from trees on his property.
Coates v. Chinn, 332 P.2d 289 (Cal. 1958): A possessor of land is subject to liability for bodily
harm caused to others outside the land by a structure or other artificial condition thereon, which
possessor realizes or should realize as involving an unreasonable risk of such harm, if possessor
has created the condition or, when he took possession, knew or should have known of the
condition which was created before he took possession.
Marsh v. City of Sacramento, 274 P.2d 434 (Cal.App.3.Dist. 1954): Public right of passage
carries with it obligation upon occupiers of abutting land to use reasonable care to see that
passage is safe and although occupiers are not required to maintain and repair highway itself,
they will be liable for any unreasonable risk to those who are on it and their obligation extends to
any conditions, such as excavation next to street, which are dangerous to those who use street.
Werkman v. Howard Zink Corp., 218 P.2d 43 (Cal.App.2.Dist. 1950): The duty of owner
installing overhead garage door opening from building into alley is measured by standard of
foreseeability of injury to eyes of reasonably prudent man having regard for accompanying
circumstances.
Potter v. Empress Theatre Co., 204 P.2d 120 (Cal.App.3.Dist. 1949): Possessor of land is liable
for bodily harm to others outside the land caused by structure or other artificial condition thereon
which possessor realizes, or should realize, involves unreasonable risk of harm, if condition is
created by possessor or by third person without possessor's consent or acquiescence but
reasonable care is not taken to make the condition safer after possessor knows or should know of
it.
Castro v. Sutter Creek Union High School Dist., 77 P.2d 509 (Cal.App.3.Dist. 1938): The
owners of a parkway must exercise due care to have parkway kept in reasonably safe condition,
and member of general public is not guilty of contributory negligence as matter of law in passing
over parkway. St.1923, p. 675, § 2 (repealed. See Govt.Code, § 53051).
22
Knott v. McGilvray, 56 P. 789 (Cal. 1899): A person engaged with tools and materials directly
over a thoroughfare where people are rightfully traveling must exercise the greatest care to
prevent injury to travelers.
2.
Act of God Defense
Mancuso v. Southern Cal. Edison Co., 283 Cal.Rptr. 300 (Cal.App.2.Dist. 1991): Defense to
liability for damages that event was "act of God" may be asserted if an unanticipated natural
occurrence is sole cause of injury or damage; natural event must be so unusual in its proportions
that it could not be anticipated by defendant, and fact that event is unforseeable is not enough.
American Motorcyle Assn. V. Superior Court, 578 P.2d 899 (Cal. 1978): Under common-law
principles, negligent tort-feasor is generally liable for all damage of which his negligence is a
proximate cause and tort-feasor may not escape this responsibility simply because another act,
either "innocent" occurrence such as "Act of God" or other negligent conduct, may also have
been cause of injury; in order to recover damages sustained as a result of indivisible injury,
plaintiff is not required to prove that tort-feasor's conduct was sole proximate cause of injury, but
only that such negligence was a proximate cause. West’s Ann.Civ.Code § 1714.
3.
Governmental Liability
Locklin v. City of Lafayette, 867 P.2d 724 (Cal. 1994): Governmental entity must exert control
over and assume responsibility for maintenance of watercourse if it is to be liable for damage
caused by streamflow on theory that watercourse has become public work.
Tri-Chem, Inc. v. Los Angeles County Flood Control Dist., Los Angeles County, 132 Cal.Rptr.
142 (Cal.App. 2 Dist. 1976): Right of city and county to flood landowners' property is no less
than the right of private landowner in similar situation. For city and county to be liable to
landowners for property damage arising out of flooding on landowners' property, their conduct
must, minimally, have resulted in more water than would have otherwise flowed onto
landowners' land, which greater quantity resulted in damage.
Osgood v. Shasta County, 123 Cal.Rptr. 442 (Cal.App. 3 Dist. 1975): Shoreline of a lake is a
"natural condition" thereof within statute exempting municipal entities from liability for injury
caused by natural condition of a lake. West's Ann.Gov.Code, § 831.2.
Van Winkle v. City of King, 308 P.2d 512 (Cal.App.1.Dist. 1957): Where city leased land to
lessee to manufacture chemicals and authorized lessee to rent living quarters in barrack buildings
on the land and to use sewage disposal plant located near the land, and lessee rented a unit in one
of the barrack buildings to parents of child two years and ten months of age, and child went from
barrack building 850 or 900 feet and then down stairway 85 feet in length to sewage disposal
plant where he drowned, there was no implied invitation to child to play at sewage disposal
plant, and child would not be deemed an "invitee" in action by parents against city and lessee for
death of child. The status of the child was that of a trespasser, or at best a licensee, and parents
could not recover from city and lessee for death of child, in absence of evidence of active
negligence on part of city or lessee.
23
Beeson v. City of Los Angeles, 300 P. 993 (Cal.App.4.Dist. 1931): Statute fixing liability of
municipalities for defective condition of streets and works held inapplicable to death of child
drowning in storm drain when playing therein. St.1923, p. 675, § 2 (repealed. See Govt.Code, §
53051).
De Baker v. Southern Cal. Ry. Co., 39 P. 610 (Cal. 1895): A city which is directed and
authorized by legislative act to improve a channel and banks of a river therein is not liable to one
injured by an honest error of judgment on the part of the authorities in locating and planning
such improvements.
Moore v. City of Los Angeles, 13 P. 855 (Cal. 1887): The city of Los Angeles is not liable for
damage to property within its corporate limits caused by the sudden overflow of a river, the bed
of which, and the right to sell water from which, belong to the city; there being no provision in
its charter requiring it to protect private property from such overflow.
Colorado
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
Wilson v. Calder, 518 P.2d 952 (Colo.App. 1973): Defense of act of God is available only when
defendants can prove that injury resulted solely from natural causes.
3.
Governmental Liability
Lawrence v. Buena Vista Sanitation Dist., 989 P.2d 254 (Colo.App. 1999): A claim that allows
recovery without proof of negligence is precluded under the Governmental Immunity Act
provision that "unless negligence is proven" no liability shall be imposed for injury resulting
from dangerous condition of or operation and maintenance of a public water facility or public
sanitation facility. West's C.R.S.A. § 24-10-106(4).
Scott v. City of Greeley, 931 P.2d 525 (Colo.App. 1996): Statutory waiver of public entity tort
sovereign immunity under Colorado Governmental Immunity Act (CGIA) in cases of injuries
resulting from operation and maintenance of public water facility or sanitation facility by public
entity only requires that government be engaged in operation and maintenance of public water
facility. West's C.R.S.A. § 24-10-106(1)(f).
Richland Development Co., L.L.C. v. East Cherry Creek Valley Water and Sanitation Dist., 934
P.2d 841 (Colo.App. 1996): Under provision of Governmental Immunity Act (GIA) which
waives governmental immunity for injuries resulting from operation or maintenance of any
public water or sanitation facility, pertinent act or omission of public entity is deemed to be an
operation only if entity is vested by law with respect to purposes of public water or sanitation
facility; thus, sovereign immunity is waived only if act or omission relates to purpose of facility.
West's C.R.S.A. §§ 24-10-103, 24-10-106(1)(f).
24
Kershner v. Town of Walden, 355 P.2d 77 (Colo. 1960): In installing a sewer system, usual rules
of negligence apply, and without proof of negligence in construction, maintenance or operation
of sewer, city may not be held answerable for damage caused by backing up of sewer.
City of Denver v. Capelli, 4 Colo. 25 (Colo. 1877): Where a municipal corporation on which is
conferred the power to construct sewers exercises its power, it will be liable for failure in the
exercise of its ministerial duty in constructing the work. A city is liable for the negligent
construction of a drain; and once constructed there is a duty to keep it in repair. But is not liable
for defects in the plan. When the law confers a power judicial in its nature (e.g., to construct all
necessary drains and sewers) upon a municipal corporation, no liability attaches so long as the
authorities fail or refuse to exercise that power; nor can the city be made to respond for a mere
error in judgment in the plan or system adopted. But if the power be exercised the city will be
held to a strict performance of whatever ministerial duties may be incident thereto.
Wark v. Board of County Com’rs of County of Dolores, 47 P.2d 711 (Colo.App. 2002): Counties
do not waive their immunity for actions arising from injuries resulting from dangerous
conditions on county roads. West’s C.R.S.A. § 24-10-106(1). County was not among the entities
whose immunity was waived for actions for injuries resulting from dangerous conditions on
roadways; counties were not included within the statutory waiver of immunity for dangerous
conditions of roadways. West’s C.R.S. § 24-10-106(1). County's alleged failure to maintain or
improve a road, even recklessly or intentionally, did not constitute a due process violation
cognizable under § 1983, and thus county was not liable to parents whose daughter was killed in
an automobile accident on that road; the county did not have a constitutional duty to make road
improvements. U.S.C.A Const.Amend. 14, 42 U.S.C.A § 1983. County was not liable under
"danger creation" exception, for due process purposes, to parents whose daughter was killed in
accident on county road and who brought a § 1983 against county; county did not affirmatively
place the daughter in a position of danger, and any danger on the road was not specific to the
daughter, as opposed to the public at large. U.S.C.A Cont. Amend. 14; 42 U.S.C.A § 1983.
Medina v. State, 2001 WL 1491459 (Colo. 2001): To establish a waiver of sovereign immunity
under the Colorado Governmental Immunity Act (CGIA) due to a dangerous condition of a
public highway which physically interferes with the movement of traffic, a plaintiff must
establish that his injuries occurred as a result of: (1) the physical condition of the public facility
or the use thereof; (2) which constitutes an unreasonable risk to the health or safety of the public;
(3) which is known to exist or should have been known to exist in the exercise of reasonable
care; and (4) which condition is proximately caused by the negligent act or omission of the
public entity in constructing or maintaining such facility. West’s C.R.S.A. § 24-10-106(1)(d)(I).
For purposes of the Colorado Governmental Immunity Act (CGIA), to "maintain" means to keep
a road in the same general state of being, repair, or efficiency as initially constructed, whereas to
"design" means to conceive or plan out in the mind; the critical distinction is temporal, as the
state's duty to maintain can only arise after the road has been designed and constructed. Under
the CGIA, whether an injury resulting from a dangerous condition of a public highway is caused
by the state's failure to maintain the highway or by the inadequate design of the highway depends
on the time at which the dangerous condition of the highway arose. Under the CGIA, an injury
results from a failure to maintain when it is caused by a condition of the road that develops
25
subsequent to the road's initial design, whereas, in contrast, an injury results from inadequate
design when it is caused by a condition of the road that inheres in the design and persists to the
time of the injury; the CGIA waives immunity only for the former. Under the CGIA, the state's
acceptance of the final design of a highway--including the level of risk remaining at the end of
the design phase--determines the general state of being, repair, or efficiency of the road as
initially constructed before any determination can be made on whether a dangerous condition
developed subsequent to the initial design and construction and, thus, was attributable to the
state's failure to maintain the road, or was attributable to the road's design. For purposes of the
CGIA, the state, on the one hand, waives immunity in an action to recover for injuries resulting
from its failure to maintain a public road, given that failure to return a road to the same general
state of being, repair, or efficiency as initially constructed would increase the risk of injury above
that deemed to be acceptable during the design stage, while the state, on the other hand, does not
waive immunity for injuries that arise out of a dangerous condition which is inherent in the
design of a highway, which is intrinsic to the general state of being, repair, or efficiency of the
road as initially constructed. Under the CGIA, the state is not obligated to mitigate the risk of
injury from a dangerous condition inherent in the design of a highway; otherwise the state would
be required to reduce the risk of injury below the general state of being, repair, or efficiency of
the road as initially constructed, and the statute specifically excludes from the state's
maintenance obligation any duty to upgrade, modernize, modify, or improve the design of a
facility. Under the CGIA, the state's duty to maintain a public roadway only requires it to ensure
that the risk of injury does not increase, due to degradation of the highway, beyond the general
state of being, repair, or efficiency of the road as initially constructed; designs that become
inadequate over time--because of a change in use of the highway or because of changing safety
standards--need not be corrected, as risk attributable to the changing use of a highway is not
attributable to the road but to external sources such as an increase in traffic. For purposes of
waiver of government immunity under the CGIA, when an injury is caused by breach of duty to
maintain the public highway, it is the development of a dangerous condition of a public highway,
subsequent to the initial design and construction of the highway, that creates in the state a duty to
return the road to the same general state of being, repair, or efficiency as initially constructed; the
duty to maintain only requires the state to rectify degradation not obsolescence. A dangerous
condition of the public highway occurring subsequent to its initial design and construction
triggers the state's duty to return the road to its original state of being, repair, or efficiency, and
thus, any injury caused by the state's failure to comply with that duty may fall within the waiver
provisions of the Colorado Governmental Immunity Act (CGIA). To prove that the state has
waived immunity and, thus, that the trial court has jurisdiction in a motion to dismiss for lack of
subject-matter jurisdiction, plaintiffs must prove that their injuries were caused by a breach of
the state's duty to maintain the highway through lack of maintenance subsequent to the initial
design and construction of the highway; without evidence establishing the original state of being,
repair, or efficiency of the road, it is impossible to determine whether plaintiffs' injuries were
caused by a dangerous condition of the road that developed subsequent to the initial design and
construction of the road or whether their injuries were caused by a dangerous condition that
inhered in the design itself.
Connecticut
1.
Landowner’s Duty to Inspect/Prepare
26
Sawicki v. Connecticut Ry. & Lighting Co., 30 A.2d 556, (Conn.,1943): An owner of realty
abutting on highway rests under an obligation to use reasonable care to keep his premises in such
condition as not to endanger travelers in their lawful use of the highway, and if he fails to do so,
and thereby renders the highway unsafe for travel, he makes himself liable though the
consequent injury is received on his realty and not on highway.
Ruocco v. United Advertising Corp., 119 A. 48 (Conn. 1922): An owner of property abutting on
a highway must use reasonable care to keep his premises in such condition as not to endanger
travelers on the highway, and where the line between highway, and private property, is not clear
and distinct, the owner may be liable, though the injury is received on his land and not on the
highway; the danger being such that a prudent person would foresee that harm might result to
travelers on the highway.
Cheeseborough v. Green, 10 Conn. 318 (Conn. 1834): The owner of a lower story of a building
cannot maintain an action at law against the owner of an upper story for injuries caused by want
of proper repairs to the roof.
2.
Act of God Defense
3.
Governmental Liability
Filippi v. Sullivan, 829 A.2d 77 (Conn.App. 2003): Statute providing limited waiver of sovereign
immunity concerning actions against state Commissioner of Transportation and regarding
defective highways is to be strictly construed, since statute was break from common law.
C.G.S.A § 13a-144
White v. Town of Westport, 72 Conn.App. 169 (Conn.App. 2002): To bring a successful claim
under highway defect statute, the plaintiff must prove: (1) that the highway was defective as
claimed; (2) that the defendant actually knew of the particular defect or that, in exercise of its
supervision of highways in the city, it should have known of that defect; (3) that defendant,
having actual or constructive knowledge of this defect, failed to remedy it having had a
reasonable time, under all the circumstances, to do so; and (4) that the defect must have been
sole proximate cause of injuries and damages claimed, which means that plaintiff must prove
freedom from contributory negligence. C.G.S.A. § 13a-149.
L’Homme v. Department of Transp., 805 A.2d 728 (Conn.App. 2002): To prove a breach of duty
under highway defect statute, the plaintiff must prove by a preponderance of the evidence: (1)
that the highway was defective as claimed; (2) that the defendant actually knew of the particular
defect or that, in the exercise of its supervision of highways in the city, it should have known of
that defect; (3) that the defendant, having actual or constructive knowledge of this defect, failed
to remedy it, having had a reasonable time, under all the circumstances, to do so; and (4) that the
defect must have been the sole proximate cause of the injuries and damages claimed. C.G.S.A. §
13a-144. It is the plaintiff's burden to prove each of elements to show breach of duty under the
highway defect statute, and failure to prove any element will preclude a finding of liability under
the statute. C.G.S.A. §13a-144.
27
Bovat v. City of Waterbury, 258 Conn. 573 (Conn. 2001): To prove a breach of statutory duty
under the defective highway statute, the plaintiff must prove by a preponderance of the evidence:
(1) that the highway was defective as claimed; (2) that the defendant actually knew of the
particular defect or that, in the exercise of its supervision of highways in the city, it should have
known of that defect; (3) that the defendant, having actual or constructive knowledge of this
defect, failed to remedy it having had a reasonable time, under all the circumstances, to do so;
and (4) that the defect must have been the sole proximate cause of the injuries and damages
claimed. C.G.S.A. § 13a-149.
Spears v. Garcia, 785 S.2d 1181, (Conn.App. 2001): Minor and her mother could rely on statute,
abrogating governmental immunity for a direct cause of action under certain circumstances, to
bring a direct cause of action for negligence against city and its fire department, alleging that
motor vehicle struck minor after she was pushed into the road by a high pressure stream of water
flowing from a fire hydrant, which had been opened by an unauthorized person, and that hydrant
did not have a safety device or a cap to prevent unauthorized openings. C.G.S.A § 52-557n.
Peterson v. Town of Oxford, 459 A.2d 100 (Conn. 1983): Town was not immune from liability
for damages to property owners' land caused by flooding which allegedly resulted from town's
unreasonable use of an easement.
Morse v. Borough of Fair Haven East, 48 Conn. 220 (Conn. 1880): A town constructed in the
borough of F. a highway along a hill above plaintiff's house, and in consequence of removing the
earth and filling the excavation with stones to make a better roadbed, water at times ran down
into plaintiff's cellar, causing damage. After the building of the highway, but before the injury to
plaintiff, the borough provided by amendment to its charter that thereafter the town should not
have power to lay out highways within the borough, nor be liable for any damage arising from
any defective highway therein, but that the borough should be liable therefor. Held that, if the
borough was liable to plaintiff, it was not because of the amendment to its charter, the injury not
arising from a "defective highway," but only by reason of its intentionally continuing a nuisance
for which the town was originally liable.
Delaware
1.
Landowner’s Duty to Inspect/Prepare
Wilmington Country Club v. Cowee, 747 A.2d 1087 (Del. 2000): A property owner owes a
business invitee a duty to provide safe ingress and egress, including the duty to warn or protect
against hazards on adjacent property.
Salevan v. Wilmington Park, 72 A.2d 239 (Del.Super. 1950): Public has right to free and
unmolested use of public highways, and abutting landowners may not so use their land as to
interfere with rights of persons lawfully using the highways. The inherent nature of a game of
baseball is such as to require landowner permitting game to be played on land adjacent to
highway to take reasonable precautions for protection of traveling public, and what precautions
are reasonable must depend on circumstances of particular case. Only those precautions for
28
protection of traveling public are required to be taken by landowner permitting baseball to be
played on land adjacent to highway which inherent nature of the game and its past history in the
particular location make necessary.
2.
Act of God Defense
3.
Governmental Liability
District of Columbia
1.
Landowner’s Duty to Inspect/Prepare
The District of Columbia imposes liability for a patent, naturally-occurring hazard , regardless of
whether the setting was rural or urban. Dudley v. Meadowbrook, Inc., 166 A.2d 743 (D.C. Mun.
Ct. App. 1960) (tree); Turner v. Ridley, 144 A.2d 269 (D.C.App. 1958) (tree).
2.
Act of God Defense
3.
Governmental Liability
Florida
1.
Landowner’s Duty to Inspect/Prepare
Liability of a landowner to an adjoining landowner for conditions on the owner’s property is
determined on a case by case basis under established principles of negligence law, regardless of
whether the conditions on the landowner's property are man-made or natural conditions, such as
foliage. Whitt v. Silverman, 788 So.2d 210 (Fla. 2001). As noted in Short v. Lakeside
Community Church, 700 So.2d 772 (Fla. 2d DCA 1997), the common law duty of all landowners
to protect invitees also imposes a duty toward of invitees on nearby property, so long as the
landowner's “foreseeable zone of risk” extends beyond the boundaries of the landowner’s own
property. See also Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163 (Fla. 4th DCA 1993); Johnson
v. Howard Mark Productions, Inc., 608 So.2d 937 (Fla. 2d DCA 1992). However, the landowner
owes no duty of care to invitees off the premises for events that occur solely off the premises and
which are wholly unconnected to any activity on the landowner's premises. Concepcion By and
Through Concepcion v. Archdiocese of Miami By and Through McCarthy, 693 So.2d 1103 (Fla.
3d DCA 1997).
2.
Act of God Defense
Florida imposes liability, even in the face of a so-called Act of God, so long as the result was
caused by a “congruence” of the defendant’s own negligent act with the natural force or
condition. Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA. 1983); Goodman v. Becker, 430
So.2d 560 (Fla. 3d DCA 1983).
29
In Atlantic Coast Line R. Co. v. Hendry, 150 So. 598 (Fla. 1933), a railroad company
constructed a railroad track which bisected the plaintiff's farm. There was a natural waterway
near the farm and in order to cross the waterway, the railroad constructed a fill for its trackbed in
which it placed a four-foot culvert for the passage of water. During heavy rains, the culvert
overflowed and flooded the farm, destroying the plaintiff's crops and the plaintiff sued for
damages.
The defendant railroad asserted that the plaintiff's crops were damaged solely as a result of an
Act of God. The Florida Supreme Court upheld the determination that the defendant's
negligence was a contributing proximate cause of the crop damage. The court determined that
the burden was on the defendant who asserts the Act of God defense to show that the damages
resulted solely from the Act of God. Further, the Court stated:
The defense of vis major may be successfully interposed in an action for damages
resulting solely from an Act of God; but if the defendant's negligence is a present
contributing proximate cause, which, commingled with the Act of God, produces
the injury, then the defendant is liable notwithstanding the Act of God. Citing
Davis v. Ivey, 112 So. 264 (Fla. 1927).
3.
Governmental Liability
a.
Notice Requirements:
The claimant must provide written notice within 3 years to the governmental agency and
the Department of Insurance. Florida Statute § 768.28(6). Claimant must file suit within 4
years. Florida Statute § 95.11(3)(d), § 11.065(1).
b.
Liability Limits
In cases where Florida has waived sovereign immunity, the cap on damages is generally
$100,000.
d.
General rule: Immunity given for negligent discretionary policy-making
activities but not negligent operational activities
Discretionary policy-making or planning activities of governmental entities are immune
from tort liability. Lee v. Department of Health and Rehabilitative Servs., 698 So.2d 1194, 1198
(Fla.1997). However, immunity from tort liability is waived for negligent activities that are
operational and for which a common law or statutory duty of care exists. Department of Health
and Rehabilitative Servs. v. B.J.M., 656 So.2d 906 (Fla.1995); see also Trianon Park
Condominium Ass'n v. City of Hialeah, 468 So.2d 912 (Fla.1985); Commercial Carrier Corp. v.
Indian River County, 371 So.2d 1010 (Fla.1979).
e.
Cities and Counties:
i.
Fire protection services are discretionary thus protected:
30
City of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985): Held: (1) there is no common-law
duty of individual property owners to provide fire protection services; (2) there is no statutory
duty of care upon which to base governmental liability for discretionary actions of fire fighters in
combating fires; (3) decisions of how to properly fight a particular fire, how to rescue victims in
a fire, or what and how much equipment to send to a fire are discretionary judgmental decisions
which are inherent in public safety function of fire protection; and (4) governmental entities are
clearly liable for negligent conduct resulting in personal injury while fire equipment is being
driven to the scene of a fire or personal injury to a spectator from the negligent handling of
equipment at the scene, as a result of the enactment of section 768.28, Florida Statutes (1983).
ii.
Storm Sewer Systems
City not liable under Florida’s waiver of sovereign immunity statute, Florida Statute § 768.28,
for claims of negligent design, installation, and maintenance of allegedly dangerous storm sewer
system. Collom v. City of St. Petersburg, 400 So.2d 507 (Fla.App. 2 Dist. 1981).
iii.
Police protection
Some police actions are discretionary and thus protected but some are statutorily mandated and
thus not protected:
Protected Police Activities:
Wong v. City of Miami, 237 So. 2d 132 (Fla. 1970): City and County not liable for riot damage
to plaintiffs’ businesses incurred during Republican National Convention in Miami Beach,
because even though the duty of police protection is owed to the public generally, the duty does
not inure to the benefit of particular private citizens.
Everton v. Willard, 468 So. 936 (Fla. 1985): Approving dismissal of wrongful death action for
deputy sheriff citing and releasing, rather than arresting, intoxicated motorist who then caused
fatal collision 15 minutes later, the court held: (1) the decision to arrest is a discretionary
judgmental power basic to police power function of governmental entities for which police are
afforded governmental immunity, (2) although there could be a duty of care owed to an
individual if a special relationship exists between an individual and a governmental entity, such
as where police accept responsibility to protect an individual who has assisted them and the
individual is in danger due to that assistance. Court states as follows:
In our opinion, there is no distinction between the immunity offered the police
officer in making a determination of whether to arrest an individual for an offense
and the discretionary decision of the prosecutor of whether to prosecute an
individual or the judge’s decision of whether to release an individual on bail or to
place him on probation. All of these decisions are basic discretionary, judgmental
decisions that are inherent in enforcing the laws of the state. They are clearly not
ministerial acts as contemplated by the Huhn [v. Dixie Insurance Co., 453 So. 2d
70 (Fla. 5th DCA 1984)] decision or the dissent.
31
Unprotected Police Activities
White v. City of Waldo, 659 So. 2d 707 (Fla. 1st DCA 1995): In claim by motorcyclist injured
when his motorcycle collided with a stray horse being pursued by a city police officer in unlit
patrol car, court held that: (1) officer owed duty to exercise reasonable care to make his acts safe
for others; (2) officer’s decision to conduct pursuit in unlit patrol car with private citizen on hood
was not discretionary one for which immunity from tort liability was available; and (3) evidence
was for jury on issue of whether chasing horse created danger that did not previously exist and
whether doing so in unlit patrol car deprived motorists of any notice of such danger. In its
decision, however, court noted:
Law enforcement officers must exercise discretion in enforcing laws and
protecting the public safety. For that reason, state and local government enjoys
sovereign immunity for actions law enforcement personnel take or omit in
performing “discretionary activities … inherent in the act of governing.” City of
Jacksonville v. Mills, 544 So. 2d 190 (Fla. 1989). Determining probable cause for
arrest is an example. A plaintiff victimized by a person the authorities failed to
arrest cannot recover damages from the public fisc on that account. Everton v.
Willard, 468 So. 2d 936 (Fla. 1985) (no recovery where driver who had been
drinking was involved in fatal accident some fifteen minutes after sheriff’s deputy
stopped but did not arrest him.) The decision when or whether to make an arrest
is within the discretion of law enforcement officers in the executive branch,
Rodriguez v. City of Cape Coral, 468 So. 2d 963 (Fla. 1985); City of Daytona
Beach v. Huhn, 468 So. 2d 963 (Fla. 1985); Everton, subject, of course, to
judicially enforceable rights against unlawful arrest.
Simpson v. City of Miami, 700 So. 2d 87 (Fla. 3d DCA 1997): City not entitled to sovereign
immunity in wrongful death claim for police releasing from cruiser a violator of a domestic
violence injunction:
If it is determined that the City of Miami Police Officer Fuentes’ action of
securing the domestic violence injunction violator in the police cruiser, after
having responded to a call about an injunction violation, constituted an arrest of
the violator, then pursuant to the section 741.30(9)(b), Florida Statutes (1993)
provision that upon arrest the violator “shall be held in custody until brought
before the court as expeditiously as possible[,]” (emphasis added), the officer had
no discretion under sovereign immunity principles to release the violator, see
Everton v. Willard, 468 So. 2d 936 (Fla. 1985), and was required by statute to
take the arrested violator before a judge.
f.
negligence
School Boards: Not immune for premises liability, which is operational
Green v. School Board of Pasco County, 200 WL 192148 (Fla. 2d DCA 2/18/00): Police officer
who fell from unprotected retaining wall on school premises allowed to bring premises liability
32
action against school board, because (1) school board’s alleged failure to illuminate area or erect
guardrail on retaining wall was operational negligence for which it was not shielded by sovereign
immunity, and (2) issues of fact existed as to whether officer’s prior knowledge of retaining wall
obviated duty to warn of unprotected ledge. Once a government entity builds or takes control of
property or an improvement, it has the same common law duty as a private landowner to
properly maintain and operate the property.
g.
Highways, Roads, and Bridges
The decision to install traffic control devices and plan and align road or improve or upgrade
roads or intersections is governmental, providing governmental immunity for those decisions.
Polk County v. Sofka, 2001 WL 1245329, (Fla.App.2.Dist. 2001). However, the general rule has
an exception where a governmental entity creates a known dangerous condition which is not
readily apparent to persons who could be injured by the condition. Id. A city is not an insurer of
the motorist or the pedestrian. Castano v. City of Miami, 840 So.2d 412 (Fla.App.3.Dist. 2003).
However, the city may be held liable for defects of which the city had actual or construction
knowledge, i.e., defects that have been in existence so long that they could have been discovered
by the exercise of reasonable care, and repaired.
Georgia
1.
Landowner’s Duty to Inspect/Prepare
Motel Properties, Inc. v. Miller, 436 S.E.2d 196 (Ga. 1993): “Approach” to property, which
owner or occupier of property has duty of ordinary care to keep safe, generally means that
property directly contiguous, adjacent to and touching those entryways to premises, through
which owner or occupier, by express or implied invitation, has induced or led others to come
upon his premises for any lawful purpose, and through which such owner or occupier could
foresee reasonable invitee would find it necessary or convenient to traverse while entering or
exiting in course of business for which invitation was extended; "contiguous, adjacent to, and
touching" means that property within last few steps taken by invitees, as opposed to mere
pedestrians, as they enter or exit premises. O.C.G.A. § 51-3-1. Under certain circumstances,
noncontiguous property can be deemed "approach" which owner or occupier of land has duty to
exercise ordinary care to keep safe, because owner or occupier has extended approach to his
premises by some positive action, such as constructing sidewalk, ramp or other direct approach;
exception is based on fact that owner or occupier, for his own particular benefit, has
affirmatively exerted control over public way or another's property. O.C.G.A. § 51-3-1.
International Paper Realty Co. v. Bethune, 344 S.E.2d 228 (Ga. 1986): Landowner whose land
is immediately adjacent to public way owes duty of due care to guard, cover or protect artificial
condition on property that is otherwise so situated that persons lawfully using public way might
be accidentally injured thereon.
Sinkovitz v. Peters Land Co., 64 S.E. 93 (Ga.App. 1909): It is the duty of the owner of a
building abutting upon a highway to use ordinary care to keep it from being a source of danger to
the public after its construction, as much as it is his duty originally to see that it is not a source of
33
danger by improper construction. Though the owner of a building abutting on a street is not an
insurer, he must exercise reasonable care to keep it in such condition that neither the building nor
any part thereof will fall and injure passers-by.
2.
Act of God Defense
Strange v. Bartlett, 513 S.E.2d 246 (Ga.App. 1999): Where damages are caused by the
combination of an act of God and the fault of man, such damages must be attributed entirely to
human error; the presence of one excludes the existence of the other. O.C.G.A. §1-3-3(3).
Statutory definition of "act of God" that will preclude liability in negligence action incorporates
three basic elements: (1) an accident produced by (2) an irresistible or inevitable force of nature
or God, (3) which excludes all idea of human agency or conduct. O.C.G.A. §1-3-3(3).
Mann v. Anderson, 426 S.E.2d 583 (Ga.App. 1992): Act which may be prevented by exercise of
ordinary care is not "act of God." O.C.G.A. § 1-3-3(3)
Zayre of Georgia, Inc. v. Haynes, 213 S.E.2d 163 (Ga.App. 1975): An "accident," defined by
statute as that which takes place without one's foresight or expectation or begins to exist without
design, is something which would not have been precluded by exercise of ordinary care on part
of either plaintiff or defendant; it may be an "Act of God" or a pure casualty which exists without
fault or carelessness on part of either party. Code, § 102- 103. An "accident," defined by statute
as that which takes place without one's foresight or expectation or begins to exist without design,
is something which would not have been precluded by exercise of ordinary care on part of either
plaintiff or defendant; it may be an "Act of God" or a pure casualty which exists without fault or
carelessness on part of either party. Code, § 102- 103.
3.
Governmental Liability
State sovereign immunity is governed by the Ga. Const. 1983, Art. I, §2, par. 9, which reads:
(a) The General Assembly may waive the state’s sovereign immunity from suit by
enacting a State Tort Claims Act, in which the General Assembly may provide by law
for procedures for the making, handling, and disposition of actions or claims against
the state and its department, agencies, officers, and employees, upon such terms and
subject to such conditions and limitations as the General Assembly may provide. …
O.C.G.A §50-21-24, however, sets forth certain exceptions to state liability.
County sovereign immunity is premised upon O.C.G.A. §36-1-4, entitled “When county liable to
be sued” and states: “A County is not liable to suit for any cause of action unless made so by
statute.” The Georgia Supreme Court in Gilbert v. Richardson, 452 S.E.2d 476, 264 Ga. 744
(1994) held that the 1991 amendment to the constitutional doctrine of sovereign immunity,
extending immunity to state and all of its departments and agencies, [Const. Art. I, §2, Par. (e)]
applied to counties. However, the Court also held that the enactment of a state torts claims act
was only one of the ways the legislature could constitutionally waive sovereign immunity. Thus,
the Code provisions allowing a waiver of sovereign immunity when a county purchases liability
34
insurance were upheld. Furthermore, the court also noted that the county’s participation in
GIRMA, the Georgia Interlocal Risk Management Association, did constitute liability insurance
and thus a waiver of sovereign immunity. Claims against counties are governed by O.C.G.A
§36-11-1 which provides that claims must be presented within 12 months. Presentation of the
claim includes service or process as well as filing of the suit. Failure in this regard is an absolute
bar to the claim.
As to municipal sovereign immunity, the Georgia Supreme Court in City of Thomaston v.
Bridges, 264 Ga. 4, 439 S.E.2d 906 (1994) held that the constitutional amendment language
enacted in 1991 was not a complete blanket reinstatement of sovereign immunity. Thus, as to
municipalities, O.C.G.A. §36-33-1 remains viable.
The primary exception to the doctrine of sovereign immunity as it applies in the context of
municipal and county immunity is the doctrine of nuisance. Several decisions discuss the theory
of nuisance, particularly in the context of water and sewage backups. In City of Thomasville v.
Shank, 263 Ga. 624, 437 S.E.2d 306 (1993), Mrs. Shank filed suit against the City when her
home was flooded with raw sewage. The Supreme Court first defined the nuisance exception:
A municipality like any other individual or private corporation may be liabile for
damages it causes to a third party from the operation or maintenance of a nuisance,
irrespective of whether it is exercising a governmental or ministerial function.
(citations omitted). Next, the court expressly upheld the validity of the nuisance exception since
the most recent constitutional amendment:
Accordingly, we reaffirm the long-standing principle that a municipality is liabile for
creating or maintaining a nuisance which constitutes either a danger to life and health or a
taking of property. This holding is not in conflict with the 1990(1) amendment as that
amendment deals with the concept of waiver, and in the case of nuisance we are dealing
not with a waiver of but an exception to sovereign immunity.
Department of Transp. v. Montgomery Tank Lines, Inc., 558 S.E.2d 723 (Ga.App. 2001): Under
the Georgia Tort Claims Act, the Department of Transportation (DOT) was not immune from
suit by insured and motor vehicle insurer for contribution or indemnity after insured and insurer
paid damages for settlement of wrongful death action arising from motor vehicle collision, where
insured and insurer alleged that DOT negligently designed and maintained intersection where
collision occurred, and DOT could have been joined as defendant in wrongful death action.
O.C.G.A. § 50-21-21 et seq.
Trax, Inc. v. City of College Park, 221 S.E.2d 595 (Ga. 1976): City had duty to take steps to
maintain flow of water in creek which was part of city's surface water drainage system whenever
it became known that changes had occurred which reduced flow of water and made flooding of
public or private property likely.
35
City of Douglas v. Cartrett, 137 S.E.2d 358 (Ga.App. 1964): An effluent line from sewage
disposal plant, being a part of the sewage system of a municipality, is for the protection of the
public health and its maintenance is a governmental function.
City of Macon v. Cannon, 79 S.E.2d 816 (Ga.App. 1954): City had duty to provide for drainage
of the increased run-off of surface water from increased impervious areas within city limits,
whether such areas were made directly by municipality or by state with federal funds. A
municipal corporation is liable in damages for nuisance created by the grading and drainage of
its streets in such a manner as to impair the health of families and produce noxious scents
rendering enjoyment of their property impossible. Code, §§ 69-301, 72-101.
City Council of Augusta v. Williams, 58 S.E.2d 208 (Ga.App. 1950): The authorized
maintenance by municipality of a drainage system for purpose of surface water is a governmental
function, and where no nuisance was involved, owner of realty was not entitled to damages to his
realty suffered by negligent maintenance and by overflow of system.
Foster v. Mayor and Aldermen of City of Savannah, 48 S.E.2d 686 (Ga.App. 1948): The duty of
a city to maintain its sewerage and drainage system in a good working and sanitary condition is a
governmental function for which there is no liability based on negligence where the system is not
operated for profit, and no substantial charges are made for the ordinary use, enjoyment and
benefits of the system. Code, § 69-301. Action by private property owners would not lie against
city for alleged negligence in failing to remove obstructions in its sewerage system causing
overflow into property owners' store where system was not operated for profit and no substantial
charges were made for ordinary use, enjoyment and benefits of the system. Code, § 69-301.
City of Tallapoosa v. Goebel, 10 S.E.2d 201 (Ga.App. 1940): A municipality is not an insurer of
its water or sewer system any more than of its streets, and is required only to use reasonable care
in establishing and maintaining such system.
Southland Coffee Co. v. City of Macon, 3 S.E.2d 739 (Ga.App. 1939): It is never to be presumed
that the law intended that city's charter right to construct and maintain drainage systems carries
with it the right to construct or maintain them in such a way as to endanger the health or life of
another. In tort action against city for damages allegedly caused by maintenance of nuisance,
consisting of storm-sewer system, wherein it was not contended that there was danger to health
or life, negligence of city was an essential element of right to recover, and instruction requiring
jury to find "ordinary neglect" was not erroneous. Code 1933, § 72-101; Const. art. 1, § 3, par. 1.
City of Macon v. Douglas, 165 S.E. 922 (Ga.App. 1932): City maintaining drainage system
which has become inadequate is liable to owners of adjoining premises on which surface waters
overflow.
City of Macon v. Macon Paper Co., 132 S.E. 136 (Ga.App. 1926): City held liable for
maintaining drainage system inadequate to carry off surface waters overflowing adjoining
premises.
36
Langley v. City Council of Augusta, 45 S.E. 486 (Ga. 1903): If a municipal corporation
negligently constructs a sewer, or maintains it, so as to constitute a nuisance, it is liable to one
injured thereby.
Mayor of Savannah v. Donnelly, 71 Ga. 258 (Ga. 1883): Where a municipal corporation gave
express permission to an individual to open a ditch across a street in the city, in order to connect
the water pipes of a private person with the water works belonging to the city, this was in effect
the opening of the ditch by the city itself; it was the act of the city, and the latter became liable
for any damage which might accrue to any person by reason of the careless and negligent manner
in which the work was done. It was the duty of the city to have superintended and overlooked the
work which it permitted to be done on its streets, and to have seen that it was done in such
manner that no injury should come to passers on the street from defects therein.
Hawaii
1.
Landowner’s Duty to Inspect/Prepare
Kaczmarczyk v. City and County of Honolulu, 656 P.2d 89 (Haw. 1982): An occupier of land is
under a duty to exercise all reasonable care for the safety of all persons known to be, or
reasonably anticipated to be, upon its premises; where premises front upon the ocean, this
responsibility extends to those swimming in waters along the property's beach frontage.
2.
Act of God Defense
3.
Governmental Liability
Wemple ex re. Dang v. Dahman, 72 P.2d 499 (Haw.App. 2002): Owners of road were not
immune from negligence liability under the Hawaii Recreational Use Statute (HRUS); although
the road was privately owned, it was in fact a public easement open for use by the general public,
and the owners could not have directly or indirectly invited the child who was struck by a motor
vehicle upon the road for recreational purposes so as to qualify for immunity. HRS §§ 520-1,
520-3
Idaho
1.
Landowner’s Duty to Inspect/Prepare
Splinter v. City of Nampa, 215 P.2d 999 (Idaho 1950): Private owners of realty are liable for
damages inflicted upon persons in or near their premises by their negligence in connection with
their property, though injury is inflicted outside and beyond limits of their property.
2.
Act of God Defense
3.
Governmental Liability
37
Lundahl v. City of Idaho Falls, 303 P.2d 667 (Idaho 1956): Municipalities are generally held
liable for negligence in construction and maintenance of drainage and sewer systems and for
negligence in other activities which municipalities are empowered but not required to carry out.
Yearsley v. City of Pocatello, 210 P.2d 795 (Idaho 1949): City is not an insurer of condition of
its drainage or water systems but must use ordinary care and skill in constructing and
maintaining them, and is likewise bound to take notice that timbers or pipes are liable to decay or
deteriorate from time and use, and must take such measures as ordinary care would dictate to
guard against breaking of flumes or leaking of system because of decay of timbers or
deterioration of pipes used in construction.
Illinois
1.
Landowner’s Duty
Illinois imposes upon a landowner in an urban or residential setting the duty to inspect the
property for defects in trees and other naturally occurring objects. See, e.g., Mahurin v.
Lockhart, 71 Ill. App. 3d 691, 390 N.E.2d 523 (1979).
Hanks v. Mount Prospect Park Dist., 614 N.E.2d 135 (Ill.App.1.Dist. 1993): Where landowner
has exercised no control over adjacent property, he will not be held liable for injuries which
occur on adjacent property. Liability will not be imposed on landowner for injury which occurs
on adjacent property where injury is not caused by physical defect in adjacent property but is a
result of an independent factor.
Kavanaugh v. Midwest Club, Inc., 517 N.E.2d 656 (Ill.App.2.Dist. 1987): In order for motorist
to recover from landowner for negligence in maintaining condition of land adjacent to the road,
the complaint must allege facts that demonstrate that the condition of the road was such that a
vehicle was likely to deviate from it in the ordinary course of travel and come in contact with the
artificial condition on the land.
Nichols by Nichols v. Sitko, 510 N.E.2d 971 (Ill.App.1.Dist. 1987): As a general rule, a
possessor of land is not liable for physical harm caused to others outside of land by natural
condition of land.
Dealers Service & Supply Co. v. St. Louis Nat. Stockyards Co., 508 N.E.2d 1241 (Ill.App.5.Dist.
1987): Landowner's possession and control of land gives landowner power of control over those
whom he allows to enter the land, which he must exercise for protection of those outside
premises.
Mahurin v. Lockhart, 390 N.E.2d 523 (Ill.App.5.Dist. 1979): A landowner in a residential or
urban area has a duty to others outside of his land to exercise reasonable care to prevent an
unreasonable risk of harm arising from defective or unsound trees on premises, including trees of
purely natural origin.
38
Thomas v. Douglas, 117 N.E.2d 417 (Ill.App.1.Dist. 1954): In action for injuries sustained by
pedestrian when falling into a window well on defendant's premises while walking along a
private passageway located on land adjoining defendant's premises, defendant had duty to
furnish plaintiff with a reasonably safe means of ingress to and egress from her home at night.
2.
Act of God Defense
3.
Governmental Liability
Mull v. Kane County Forest Preserve Dist., 786 N.E.2d 236 (Ill.App.2.Dist. 2003): Provision of
Local Governmental and Governmental Employees Tort Immunity Act relieving public entity
from liability for injuries caused by condition of "riding trail" applied to bicyclist's accident on
unpaved bicycle path covered with gravel and asphalt in county forest preserve. S.H.A. 745
ILCS 10/3- 107 (a, b). Fact that path on which bicyclist fell while riding on a bicycle path in
county forest preserve ran through some developed areas, was adjacent to a road, and was
located near entrance of a subdivision, did not deprive preserve of immunity under provision of
Local Governmental and Governmental Employees Tort Immunity Act dealing with condition of
"riding trail"; trail was unpaved and surrounded by wild grasses and shrubs. The nature of the
land next to a bicycle riding path should not determine immunity under provision of Local
Governmental and Governmental Employees Tort Immunity Act dealing with condition of
"riding trail"; if it did, immunity and non-immunity could vary depending on an adjacent
landowner's decision to develop or not develop his land. S.H.A. 745 ILCS 10/3-10(a, b).
Zakoff v. Chicago Transit Authority, 782 N.E.2d 873 (Ill.App.1.Dist. 2002): Duty may be owed
to motorist who deviates from ordinary course of travel if such deviation was reasonably
foreseeable.
Independent Trust Corp. v. City of Chicago Dept. of Water, 693 N.E.2d 459 (Ill.App.1.Dist.
1998): Tort Immunity Act does not grant general immunity to municipal water providers, so that
such providers are as general rule liable for their negligent conduct, unless their specific conduct
is encompassed within specific section of Act. S.H.A. 745 ILCS 10/5-101 et seq.
Santelli v. City of Chicago, 584 N.E.2d 456 (Ill.App. 1 Dist. 1991): Although municipality is not
liable for failing or refusing to improve its streets, sidewalks, bridges, sewers and the like, once
municipality undertakes such project, it is liable when improvement creates unreasonably
dangerous condition. S.H.A. ch. 85, ¶ 3-103(a).
Powell v. Village of Mt. Zion, 410 N.E.2d 525 (Ill.App.4.Dist. 1980): Municipalities do not have
common-law immunity pertaining to sewer systems.
Bolger v. City of Chicago, 198 Ill.App. 123 (Ill.App.1.Dist. 1916): A city must use ordinary care
to see that the safety of the public is not endangered as a result of its arrangement and
management of the instrumentalities beneath the street.
Lunger v. City of Chrisman, 145 Ill.App. 543 (Ill.App. 1908): When a city voluntarily constructs
a drain for the benefit of the public it becomes its duty to see that the drain is kept in
39
repair.
City of Peoria v. Eisler, 62 Ill.App. 26 (Ill.App. 1895): A city will be liable where it constructs a
sewer to carry off surface water if the sewer is wholly insufficient, and that fact might have been
known to the authorities had they exercised reasonable care and judgment, if damages result
from such negligence.
Indiana
1.
Landowner’s Duty to Inspect/Prepare
Sizemore v. Templeton Oil Co., Inc., 724 N.E.2d 647 (Ind.App. 2000): The duty of a landowner
to provide safe ingress and egress to a commercial property does not extend to a duty with regard
to the condition of adjacent property when that condition was not created by or related to the
landowner's use of his own property.
Sheley v. Cross, 680 N.E.2d 10 (Ind.App. 1997): Person may not use his land in such way as to
unreasonably injure interests of persons not on his land--including owners of adjacent lands,
other landowners, and users of public ways, and thus, landowner does owe duty to traveling
public to exercise reasonable care in use of his property so as not to interfere with safe travel on
public roadways. Occupier of land abutting on or adjacent to, or in close proximity to, public
highway owes duty to traveling public to exercise reasonable care to prevent injury to travelers
upon highway from any unreasonable risks, created by such occupier, which he had suffered to
continue after he knew, or should have known, of their existence, in cases where such occupier
could have taken reasonable precautions to avoid harm to such travelers.
Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377 (Ind.App. 1996): Public right of passage in
road carries with it obligation upon occupiers of adjacent land to use reasonable care not to
endanger such passage by excavations or other hazards so close to road as to make it unsafe to
persons using road with ordinary care.
Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248 (Ind. 1996): One in possession of
premises does owe duty to passersby to keep adjoining areas reasonably clear of risks.
Lever Bros. Co. v. Langdoc, 655 N.E.2d 577 (Ind.App. 1995): Plant operator which discharged
waste materials into public sewer system had duty not to discharge its waste in unreasonable
manner so as to injure interests of other persons served by system, and breached that duty when
it discharged material which interfered with system and damaged tenant of neighboring building.
Lutheran Hosp. of Indiana, Inc. v. Blaser, 634 N.E.2d 864 (Ind.App.4.Dist. 1994): Landowner or
business enterprise does not normally affect risks outside its boundaries, and, consequently, it is
not normally responsible for injuries suffered on abutting property.
Valinet v. Eskew, 574 N.E.2d 283 (Ind. 1991): Neither a possessor of land nor vendor nor lessor
nor other transferor is liable for physical harm caused to others outside of the land by a natural
condition of the land, except that a possessor of land in an urban area is subject to liability to
40
persons using a public highway for physical harm resulting from his failure to exercise
reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the
land near the highway.
Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980): Duty of landowner to person on
adjacent road is not similar to that of landowner to business invitee. Duty of a landowner to a
person on an adjacent road is similar to that of a landowner to an invitee. Owner of property
adjacent to a highway owes a positive duty to public to exercise reasonable care to prevent injury
caused by property's defective or dangerous condition.
Pitcairn v. Whiteside, 34 N.E.2d 943 (Ind.App. 1941): The occupier of land in close proximity
of a highway owes duty to traveling public to exercise reasonable care to prevent injury to
travelers from any unreasonable risks created by such occupier which he had suffered to continue
after he knew or should have known of their existence, in cases where occupier could have taken
reasonable precaution to avoid harm to travelers. The traveling public is entitled to make free
use of highways and streets and an occupier of land which is adjacent to or in close proximity of
such highway or street, cannot so use property occupied as to interrupt or interfere with exercise
of such right by creating or maintaining a condition that is unnecessarily dangerous.
Standard Brewery v. Musulin, 125 N.E. 70 (Ind. 1920): Owner of premises, to which a large
signboard is attached near the line of the street, is required to exercise only "ordinary care," or
such care as person of ordinary prudence would use under like conditions and circumstances, for
the safety of persons and property in the street.
2.
Act of God Defense
Childs v. Rayburn, 346 N.E.2d 655 (Ind.App.1.Dist. 1976): Concept of concurring negligence or
causation is applicable to those situations where one of two proximate causes of injury is an act
of God and the other is personal negligence. An act of God does not negate liability for
concurring human negligence; where an act of God concurs with human negligence, negligence
may result in liability for injury occurring as a consequence of combined forces.
William H. Stern & Son, Inc. v. Rebeck, 277 N.E.2d 15 (Ind.App.1.Div. 1971): In order for a
defendant to be relieved from liability under an act of God defense, he must show that plaintiff's
injury was caused solely by an act of God.
3.
Governmental Liability
Rodman v. City of Wabash, 497 N.E.2d 234 (Ind.App. 4 Dist. 1986): City's decision to install
sewer system constituted the performance of a discretionary function immune from liability
under State Tort Claims Act. IC 34-4-16.5-3(6) (1982 Ed.).
City of Logansport v. Cotner, 185 N.E. 634 (Ind. 1933): Township trustee has no jurisdiction
over maintenance of drains lying entirely within incorporated cities. Burns' Ann.St. §§ 48-503,
48-1902, 48- 1903, 48-3901.
41
Peck v. City of Michigan City, 49 N.E. 800 (Ind. 1898): In the construction of sewers, cities are
liable for consequential injuries resulting from negligence only.
City of Seymour v. Cummins, 21 N.E. 549 (Ind. 1889): Where a city constructs an open ditch
upon a street, so near to a plaintiff's lot as to cause portions thereof to fall into the ditch, and so
as to deprive him of access to his residence, and to affect the healthfulness of his property by
causing filthy water and sewerage to become stagnant adjacent thereto, it is liable in damages.
City of Madison v. Ross, 3 Ind. 236, (Ind. 1851): The corporate authorities of a city are not liable
for an injury to private property, caused by the insufficiency of erections to resist an
extraordinary flood, if they had proved sufficient for all purposes for a number of years before,
and ordinarily careful and thoughtful men and skillful engineers would not have contemplated
that such a flood would ever occur.
Iowa
1.
Landowner’s Duty to Inspect/Prepare
Meyers v. Delaney, 529 N.W.2d 288 (Iowa 1995): It is general rule that one who maintains trees
owes duty to avoid injuring persons on adjoining premises by permitting tree to become so
defective and decayed it will fall on them.
Weber v. Madison, 251 N.W.2d 523 (Iowa 1977): While an abutting landowner is not liable
with respect to highway hazards over which he has no control, he is under an obligation to use
reasonable care to keep his premises in such condition and not to create a hazard in adjoining
highway.
Goodwin v. Mason & Seabury, 155 N.W. 966 (Iowa 1916): He who erects a building abutting
on a public street owes an absolute duty to the public to so erect it that it will be reasonably safe
and strong. He cannot delegate this duty to anyone.
2.
Act of God Defense
Keystone Elec. Mfg., Co. v. City of Des Moines, 586 N.W.2d 340 (Iowa 1998): When neglect in
the employment of a human agency is combined with an act of God, liability for damage results
from such neglect. To establish an act of God affirmative defense, a defendant must show: (1)
that the act of God in fact occurred, and (2) that the act of God was the sole proximate cause of
plaintiff's injuries. When neglect in the employment of a human agency is combined with an act
of God, liability for damage results from such neglect. In determining whether a flood should be
characterized as ordinary or extraordinary, for purposes of an act of God defense, courts consider
whether the floods occurrence and magnitude should or might have been anticipated, in view of
the flood history of the locality and the existing conditions affecting the likelihood of floods, by
a person of reasonable prudence.
Baker v. City of Ottumwa, 560 N.W.2d 578 (Iowa 1997): With respect to sole proximate cause
defense, any event not chargeable to defendant, including "act of God," can insulate defendant
42
from liability. With respect to sole proximate cause defense, any event not chargeable to
defendant, including "act of God," can insulate defendant from liability.
Lanz. V. Pearson, 475 N.W.2d 601 (Iowa 1991): In comparative fault cases, act of God defense
may be used only when act of God is alleged to be sole proximate cause of harm in question.
Sponsler v. Clarke Electric Cooparative, Inc., 329 N.W.2d 663 (Iowa 1983): The doctrine of
"Act of God" is an example of the sole proximate cause defense.
Dickman v. Truck Transport, Inc., 224 N.W.2d 459 (Iowa 1974): Doctrine of sudden emergency
concerns issue of negligence whereas theory of act of God deals with question of proximate
cause.
3.
Governmental Liability
Davison v. State, 669 N.W.2d 261 (Iowa.App. 2003): Pursuant to discretionary function
exception to State Tort Claims Act, State was immune from liability for its inspection and
maintenance decisions regarding highway, with respect to negligence action brought by motorist,
who was injured when wagon gear became detached from driver's truck and struck motorist's
vehicle, and motorist's wife, who was following in her own vehicle and witnessed incident;
Department of Transportation's decisions regarding performance of inspections, maintenance,
and repairs were matters of judgment left to its discretion, and Department's decisions on how to
inspect and maintain State's road system involved making choices with respect to public policy
and planning. I.C.A. § 669.14(1).
Hansen v. City of Audobon, 378 N.W.2d 903 (Iowa 1985): When city undertakes performance of
ministerial function of maintaining its sewer system, it is chargeable for damages caused by its
negligence in building, constructing, and maintaining such drains and sewers.
Scholbrock v. City of New Hampton, 368 N.W.2d 195 (Iowa 1985): Municipality which
provides drains and sewers to its residents may be liable in tort if it fails to exercise reasonable
skill and care in providing the service. A city is not an insurer in providing sanitary sewer
service and is liable only for the negligence in performance of its duty owed public. Duty owed
by city in maintaining sanitary sewer system is more appropriately measured by tort law than by
concept of implied contract arising from user's obligation to pay for city services. A
municipality which undertakes to provide sanitary sewer system owes users to system duty to
exercise reasonable care in providing that service; recovery for damages caused by failure of that
system may be premised on tort theory but not on theory of implied contract arising out of
obligation to pay for the service.
Meeker v. City of Clinton, 259 N.W.2d 822 (Iowa 1977): Municipality is not an insurer of
conditions of its drains and watercourses; in order to charge it with damage occasioned by
defects or obstructions therein, negligence must be proven, that is, it is not liable except for
negligence in the performance of its duty.
43
McGuire v. City of Cedar Rapids, 189 N.W.2d 592 (Iowa 1971): Statutory delegation of power
to a city to provide sewage disposal plants, when exercised, carries with it a duty to use ordinary
care or exercise due diligence to maintain and operate such disposal system in a safe manner.
I.C.A. §§ 368.26, subd. 2, 394.3. Failure to perform duty arising from delegated power to
provide for sewage disposal plants imposes liability upon municipality for injuries to one
lawfully coming upon premises who is injured because of such failure and without fault on his
part and without any statute expressly authorizing a cause of action. I.C.A. §§ 368.26, subd. 2,
394.3. Principle of municipal liability for a tort arises with equal logic from a city or town's
operation and maintenance of sewage disposal plant established under authority of statute. I.C.A.
§§ 368.26, subd. 2, 394.3. Liability of city for injuries sustained by plaintiff's husband in a
sewage disposal plant was not predicated on doctrine of respondeat superior, but upon city's own
negligence in failing to operate and maintain its sewage disposal plant in a reasonably safe
manner. I.C.A. §§ 368.26, subd. 2, 394.3.
Elledge v. City of Des Moines, 144 N.W.2d 283 (Iowa 1966): When a storm sewer is installed
by a city or town, it becomes the property of the municipality, its care, maintenance and
continuance devolves wholly upon the city, and no one can interfere with it.
Sparks v. City of Pella, 137 N.W.2d 909 (Iowa 1965): Common-law definition of nuisance must
be applied where action was against city to recover damages for the construction and
maintenance of a sewer as nuisance. I.C.A. §§ 657.1, 657.2.
Hunt v. Smith, 28 N.W.2d 213 (Iowa 1947): The rule respecting control of waters as applied to
cities and towns is more liberal to them than to nonurban owners similarly situated.
Platter v. City of Des Moines, 21 N.W.2d 787 (Iowa 1946): A city is not an insurer against
damage from break in a sewer, and can be held liable only for negligence in the performance of
its duty.
Brose v. City of Dubuque, 187 N.W. 857 (Iowa 1922): Where plaintiff's child was drowned in a
sewer while she was passing across private property from one house to another, when the bank
of the sewer under the path she was traveling caved into the sewer, the city is not liable, under
the attractive nuisance doctrine, even though children sometimes played on the sewer bank, since
plaintiff's child was not attracted by the sewer. A child who was traveling across private
property, through which a city sewer ran, to visit the owner of the property, was no more than a
licensee as to the owner of the property, and not more than that as to the city with respect to the
city's duty to protect dangerous premises. The drowning of a child by the cave-in of the bank of
an open sewer across private property under a path on which the child was walking was an
accident so unexpected that the city owed no duty to guard against it and, therefore, the city was
not liable for the death.
Fitzgerald v. Town of Sharon, 121 N.W. 523 (Iowa 1909): Under Code, §§ 696, 699, giving
municipalities power to prevent and abate nuisances, and to regulate drainage, a municipality
cannot escape liability for creating and maintaining a drain, which ends on the property of
plaintiffs, on the ground that the acts complained of were ultra vires.
44
Rand Lumber Co. v. City of Burlington, 97 N.W. 1096 (Iowa 1904): The legislative authority
under which a city constructs sewers does not prescribe the system to be adopted nor the manner
in which the work shall be performed, and hence, notwithstanding the work may have been done
by or under the direction of skilled engineers, if the matters complained of are shown to be the
natural or necessary result of the proper exercise of such power or authority, it does not relieve
the city from liability to a peremptory writ for the abatement of a nuisance created by their
construction.
Cooper v. City of Cedar Rapids, 83 N.W. 1050 (Iowa 1900): Where an open sewer for surface
drainage, authorized by law, is constructed by a city, an abutting property owner may maintain
an action for damages for injuries to his property in consequence of any negligence or
unskillfulness in doing the work.
Loughran v. City of Des Moines, 34 N.W. 172 (Iowa 1887): It would seem that a city is not
liable in damages as for a nuisance on account of the filthy and unwholesome condition of a
small stream within its limits, where the stream passes over private property only, over which the
city has no control.
Wicks v. Town of De Witt, 6 N.W. 176 (Iowa 1880): In an action against a town for the
negligent construction of a ditch, the court erred in refusing to strike out evidence of the
improper location thereof; the town not being liable for improper location of the ditch.
Kansas
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
McFeeters v. Renollet, 500 P.2d 47 (Kan. 1972): An "act of God," as known in the law, is an
irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and
care can anticipate and prevent; and to be a defense it must be an intervening cause which was
not foreseeable and consequences of which could not be prevented.
Huebert v. Federal Pac. Elec. Co., 494 P.2d 1210 (Kan. 1972): "Act of God" as known in the law
is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence
and care can anticipate and prevent.
3.
Governmental Liability
Reynolds v. Kansas Dept. of Transp., 43 P.2d 799 (Kan. 2002): State Department of
Transportation has a common-law duty to protect the motoring public. Common-law duty of
State Department of Transportation to keep the highways in a reasonably safe condition is
nondelegable due to its importance to citizens.
Baldwin v. City of Overland Park, 468 P.2d 168 (Kan. 1970): A city has no duty to provide
drainage to take care of surface waters and ordinarily a failure to protect citizens from surface
45
water is not actionable. K.S.A. 13-428, 13-1055 et seq. Where there was no indication that city
disturbed in any way the natural drainage of 20-block area in which plaintiffs' property was
located and no new water had been collected and diverted into drainage ditch adjacent to
plaintiffs' property from some other area or source, city was not liable for property damage to
retaining wall on plaintiffs' property and basement of plaintiffs' home.
Adams v. Arkansas City, 362 P.2d 829, (Kan. 1961): Sewage treatment plant of city is not
nuisance per se, but it may be so constructed, maintained, or operated that it becomes nuisance in
fact or per accidens.
State v. City of Concordia, 96 P. 487 (Kan. 1908): The right of a municipality to construct drains
and sewers must be so exercised as not to create a nuisance, public or private.
Kentucky
1.
Landowner’s Duty to Inspect/Prepare
Glasgow Realty Co. v. Metcalfe, 482 S.W.2d 750 (Ky. 1972): Building owner had duty to use
ordinary care in the upkeep and maintenance of window in building from which the glass fell, so
as to make and keep the window in such condition as would make it reasonably safe for persons
using the sidewalks adjacent to the building.
A.H. Bowman & Co. v. Williams, 21 S.W.2d 790 (Ky. 1929): Structure cannot be maintained so
as to render occupancy of adjoining property dangerous. Owner of building destroyed by fire
had duty of using reasonable precaution to protect adjoining owner from danger of falling wall.
2.
Act of God Defense
3.
Governmental Liability
Louisville and Jefferson County Metropolitan Sewer Dist. v. Simpson, 730 S.W.2d 939 (Ky.
1987): Metropolitan sewer district was at least partially an arm of the county and thus a political
subdivision of the state with sovereign immunity.
Talbert v. City of Winchester, 125 S.W.2d 1002 (Ky. 1939): City was not liable for injury to
plaintiffs' health and damage to plaintiffs' premises resulting from natural drainage of water onto
plaintiffs' premises.
City of Maysville v. Brooks, 140 S.W. 665 (Ky. 1911): While a municipality is not bound to
construct sewers and it is not liable for damages occasioned by the lack of them, yet where it
either constructs sewers or adopts a private one it is liable for damages occasioned by its failure
to keep them in proper repair.
Louisiana
1.
Landowner’s Duty to Inspect/Prepare
46
Ledet v. Doe, 762 So.2d 242 (La.App.5.Cir. 2000): In considering whether a landowner's duty
should be extended to adjacent or nearby property, factors to be considered include such matters
as whether the owner invited its patrons to use that property and whether the property provided a
means of access to business premises.
Hammons v. City of Tallulah, 705 So.2d 276 (La.App.2.Cir. 1997): Where owner or possessor of
property actually knows of dangerous condition upon adjacent property, adjacent property is
utilized for access to owner or possessor's property, and such known condition poses threat to
safety of invitees, owner or possessor may be held liable for negligence for breach of duty,
measured under duty-risk analysis.
Russell v. Windsor Properties, Inc., 366 So.2d 219 (La.App.3.Cir. 1978): Though proprietor
may do with his estate whatever he pleases, he cannot make any work on it which may deprive
his neighbor of liberty of enjoying his own or which may be cause of any damage to him. LSAC.C. art. 667.
Morales v. Tetra Technologies, Inc., 608 So.2d 282 (La.App.3.Cir. 1992): Landowner or
possessor cannot escape liability for injuries occurring on adjacent property by mere fact of his
status as nonowner; question is whether landowner or possessor was negligent in any manner.
LSA-C.C. art. 2315.
Hakim v. Albritton, 552 So.2d 548 (La.App.2.Cir. 1989): Extent of duty, if any, of owner of
land to prevent injury to persons on premises or adjacent property, caused by conduct on subject
premises, is to be determined by facts and circumstances of each case.
Jones v. Gillen, 504 So.2d 575 (La.App.5.Cir. 1987): Though landowner is generally not liable
for injuries which occur from defects on adjacent property, he cannot escape liability by mere
fact of his status as nonowner of that property and it must be determined whether his conduct
was cause in fact of accident, whether he owed legal duty encompassing particular risk of harm
to which plaintiff was exposed, whether he breached that duty, and what damages plaintiff
sustained. LSA-C.C. art. 2315.
Sanderson v. Beaugh, 367 So.2d 14 (La.App.4.Cir. 1978): Extent of duty, if any, of owner or
possessor of land to prevent injury to persons on premises or on adjacent property, caused by
conduct on subject premises, is determined by facts and circumstances of each case.
Glorioso v. Chandler, 337 So.2d 269 (La.App.2.Cir. 1976): Owner of a building is liable to a
neighbor injured by the fall of the building caused by the owner's neglect to repair the building.
Town of Jackson v. Mounger Motors, Inc., 98 So.2d 697 (La.App.1.Cir. 1957): The principle
that one may not so use his property as to cause damage to his neighbors is a qualification of the
general rule that, in the absence of a valid statutory regulation, the proprietor of land may do
whatsoever he wishes with or on it, providing such use does not unreasonably disturb his
neighbor's use of the latter's own property. LSA-C.C. arts. 491, 667, 668. The doctrine that one
may not so use his property as to cause damage to his neighbor's applies only when such use
47
involves a high degree of risk of harm to others and is abnormal in the community or is unduly
dangerous and inappropriate to the place where it is maintained, in light of the character of the
place and its surroundings.
Landry v. News-Star-World Pub. Corp., 46 So.2d 140 (La.App.2.Cir. 1950): Owner of building
is required only to exercise ordinary and reasonable care for protection of those who may pass or
enter and is not an insurer of their safety.
2.
Act of God Defense
Brown v. Williams, 36, 863 La.App. 2 Cir. 7/31/03 (La.App.2.Cir. 2003): Once a plaintiff has
proven the elements necessary to recover for damage caused by a thing in another's custody, the
owner of the thing can avoid liability if he shows that the harm was caused by an Act of God.
(Per Williams, J., with one Judge joining in the opinion and one Judge concurring with written
reasons.) LSA-C.C. art. 2317. An "Act of God," or "force majeure," for purposes of an owner
avoiding liability for damage caused by a defective thing in his custody, is an unusual, sudden
and unexpected manifestation of the forces of nature which man cannot resist. (Per Williams, J.,
with one Judge joining in the opinion and one Judge concurring with written reasons.) LSA-C.C.
art. 2317. An injury caused by an Act of God, for purposes of an owner avoiding liability for
damage caused by a defective thing in his custody, is one which is due directly and exclusively
to natural causes that could not have been prevented by the exercise of reasonable care. (Per
Williams, J., with one Judge joining in the opinion and one Judge concurring with written
reasons.) LSA-C.C. art. 2317. Recovery for injuries caused by extreme weather conditions may
be precluded by the application of the Act of God, or force majeure, rule. (Per Williams, J., with
one Judge joining in the opinion and one Judge concurring with written reasons.)
Terre Aux Boeufs Land Co., Inc. v. J.R. Gray Barge Co., 2000-2754 La.App. 4 Cir. 11/14/01
(La.App.4.Cir. 2001): The Act of God defense in maritime law applies only if the following
circumstances exist: (1) the accident is due directly and exclusively to natural causes without
human intervention, and (2) no negligent behavior by the defendants contributed to the accident.
K&M Enterprises of Slaughter, Inc. v. Pennington, 764 So. 2d 1089 (La.App.1.Cir. 2000): An
"act of God" is an unusual, extraordinary, sudden, and unexpected manifestation of the forces of
nature which cannot be prevented by human care, skill, or foresight.
Kose v. Cablevision of Shreveport, 755 So.2d 1039 (La.App.2.Cir. 2000): Once the plaintiff
proves the elements of strict liability, the owner or guardian responsible for the person or thing
can escape liability only if he shows the harm was caused by the fault of the victim, by the fault
of a third person, or by an act of God. LSA-C.C. art. 2317.
Greene v. Fox Crossing, Inc., 754 So. 2d 339 (La.App.2.Cir. 2000): Once a plaintiff has proven
the elements of strict liability, the owner or guardian responsible for the thing can escape liability
if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an
Act of God. LSA-C.C art. 2317.
48
Caldwell v. Let The Good Times Roll Festival, 717 So. 2d 1263 (La.App.2.Cir. 1998): When Act
of God combines or concurs with conduct of defendant to produce injury, defendant may be held
liable for any damages that would not have occurred but for his own conduct or omission that
constitutes a breach of specific legal duty owed by defendant. "Act of God" or "force majeure"
is superior or irresistible force that is, in legal sense, sufficient to excuse defendant's neglect of
duty and relieve him of liability to plaintiff.
Saden v. Kirby, 660 So.2d 423 (La. 1995): The concept of "force majeure," meaning a superior
or irresistible force, is similar to the common-law concept of "act of God," which has been
defined as a providential occurrence or extraordinary manifestation of the forces of nature which
could not have been foreseen and the effect thereof avoided by the exercise of reasonable
prudence, diligence and care, or by the use of those means which the situation renders reasonable
to employ. When a "force majeure" or "act of God" combines or concurs with the conduct of a
defendant to produce an injury, the defendant may be held liable for any damages that would not
have occurred but for its own conduct or omission.
Boyd v. Washington-St. Tammany Elec. Co-op., 618 So.2d 982 (La.App.1.Cir. 1993): Finding
that act of God was intervening and superseding cause of damages sustained by plaintiff
precludes recovery in strict liability action.
Gabler v. Regent Development Corp., 470 So.2d 149 (La.App.5.Cir. 1985): Not every "act of
God" will relieve defendants of liability; where injury is due directly and exclusively to natural
causes, without human intervention, "act of God" will provide insulation from liability, but
where "act of God" combines or concurs with negligence of defendant to produce injury,
defendant is liable if injury would not have resulted but for his own negligent conduct or
omission. Not every act or omission of negligence on part of defendant, when combined with
"act of God," will produce liability; rather, concurring negligence must be in itself real,
producing cause of injury. “[W]here an Act of God combines or concurs with the negligence of a
defendant to produce an injury, the defendant is liable if the injury would not have resulted but
for his own negligent conduct or omission.” Gables v. Regent Development Corp., 470 So.2d
149, 152 (La. App. 5 Cir. 1985).
Hunt v. City Stores, Inc., 387 So.2d 585 (La. 1980): To escape liability under statute imposing
liability on custodian of defective person or thing which creates unreasonable risk of harm to
others, defendant must show that damage was due to fault of victim, fault of third party, or act of
God. (Per Watson, J., two Justices concurring and one Justice concurring specially.) LSA-C.C
art. 2317
Bass v. Aetna Ins. Co., 370 So.2d 511 (La. 1979): Notwithstanding that worshiper testified he
was trotting under the Spirit of the Lord, "Act of God" defense did not apply in action by
worshiper who was injured while praying in the aisle against second worshiper who was running
in church inasmuch as "Act of God" meant force majeure.
3.
Governmental Liability
49
Woods v. State ex re. Department of Transp. and Development, 37, 185 La.App. 2 Cir. 8/14/03
(La.App.2.Cir. 2003): In order for Department of Transportation and Development (DOTD) to
be held liable for plaintiff's injuries, the plaintiff must prove that (1) DOTD had custody of the
thing which caused plaintiff's damages, (2) the thing was defective because it had a condition
which created an unreasonable risk of harm, (3) DOTD had actual or constructive notice of the
defect and failed to take corrective measures within a reasonable time, and (4) the defect was a
cause-in-fact of plaintiff's injuries. Four-part test for holding Department of Transportation and
Development (DOTD) liable for injuries caused by defective condition, under which plaintiff
must show that DOTD had custody of the thing that caused plaintiff's injuries, that the thing was
defective, that DOTD had notice of defect but failed to take corrective measures within
reasonable time, and that defect was cause-in-fact of injuries, applies to any defendant; if
plaintiff fails to prove any one of the elements, the defendant is not liable. Department of
Transportation and Development (DOTD) has a non-delegable duty to maintain safe highways
and shoulders.
Cobb v. Delta Exports, Inc., 2003-0033 La.App. 3 Cir. 6/4/03 (La.App.3.Cir. 2003): A
negligence or strict liability plaintiff seeking recovery from a government defendant based on
defective condition of a roadway must prove that: (1) the defendant owned or had custody of the
thing which caused the damage, (2) the thing was defective in that it created an unreasonable risk
of harm to others, (3) the defendant had actual or constructive knowledge of the defect and failed
to take corrective actions within a reasonable time, and (4) the defect was a cause-in-fact of the
accident. LSA-R.S. 9:2800; LSA-C.C. arts 2315, 2317. While a city is not the insurer of the
motoring public, it does have a duty to keep its roadways in reasonably safe condition.
Woodbury v. Louisiana Dept. of Transp. and Development, 03-13 La.App. 5 Cir. 5/28/03
(La.App.5.Cir. 2003): In order for Department of Transportation and Development (DOTD) to
be held liable under either negligence or strict liability theory, plaintiff must prove that (1)
DOTD had custody of thing which caused plaintiff's damages, (2) thing was defective because it
had condition which created unreasonable risk of harm, (3) DOTD had actual or constructive
notice of defect and failed to take corrective measures within a reasonable time, and (4) defect
was cause-in-fact of plaintiff's injuries.
Lockett v. State, Dept. of Transp. and Development, 844 So.2d 949 (La.App.1.Cir. 2003): An
unreasonably dangerous condition of a roadway results in a breach of duty by Department of
Transportation and Development (DOTD), and such a determination is dependent on the facts
and circumstances of each case.
Bader v. Kansas City Southern Ry. Co., 834 So.2d 1 (La.App.2.Cir. 2002): To establish breach
of State Department of Transportation and Development's (DOTD) duty to provide a reasonably
safe road, the plaintiff must prove: (1) the thing which caused the damage was in the care or
custody of the State; (2) a hazardous condition existed; (3) the State had actual or constructive
knowledge of the condition; and (4) the State failed to take corrective action within a reasonable
period of time.
Hernandez v. State, ex rel. Dept. of Transp. and Development, 841 So.2d 808 (La.App.4.Cir.
2002): A cause of action for negligence against the Department of Transportation and
50
Development (DOTD) based on an alleged defective condition of the highway requires proof
that: (1) the roadway was in the custody of the DOTD; (2) the roadway was defective because of
a condition that created unreasonable risk of harm; (3) the DOTD had actual or constructive
notice of the risk; and (4) the defect was cause in fact of the injuries.
Updegraff v. State ex rel. Dept. of Transp. and Development, 2001-1048 La.App. 4 cir. 10/2/02
(La.App.4.Cir. 2002): The duty of the Department of Transportation and Development (DOTD)
to maintain reasonably safe roadways and shoulders encompasses the risk that motorists may
travel onto or partially onto the shoulder; DOTD does not guarantee the safety of those who
travel the highways, however. The duty of the Department of Transportation and Development
(DOTD) to maintain reasonably safe roadways encompasses persons who are foreseeably placed
in danger by unreasonably dangerous conditions, including even motorists who are slightly
exceeding the speed limit, momentarily inattentive, or otherwise negligent.
Norris v. State, 2001-1578 La.App. 3 Cir. 4/3/02, (La.App.3.Cir. 2002): Regardless of whether a
plaintiff pursues the Department of Transportation and Development (DOTD) under a theory of
strict liability or negligence, the plaintiff bears the burden of exhibiting: (1) DOTD had custody
of the thing that caused the plaintiff's injuries or damages; (2) the thing was defective because it
had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive
knowledge of the defect and failed to take corrective measures within a reasonable time; and (4)
the defect in the thing was a cause-in-fact of the plaintiff's injuries. LSA-C.C arts. 2316, 2317.
Reaux v. City of New Orleans, 2001-1585 La.App. 4 Cir. 3/20/02 (La.App.4.Cir. 2002): A
public body is responsible for damages caused a motorist if the public body has either actual or
constructive notice of the defect that causes an accident, and fails to remedy the situation within
a reasonable time.
Darbone v. State, 815 So.2d 943 (La.App.3.Cir. 2002): Not every imperfection or irregularity in
a roadway renders the Department of Transportation and Development (DOTD) liable; it is only
a condition that could reasonably be expected to cause injury to a prudent person using ordinary
care under the circumstances.
Rosen v. State ex rel. Dept. of Transp. and Development, 2001-0499 La.App. 4 Cir. 1/30/02
(La.App.4.Cir. 2002): Department of Transportation and Development (DOTD) has a legal duty
to maintain highways in a reasonably safe condition. Duty of DOTD to maintain highways in a
reasonably safe condition extends to the protection of those people who may be foreseeably
placed in danger by an unreasonably dangerous condition; it extends not only to prudent and
attentive drivers, but also to motorists who are slightly exceeding speed limit or momentarily
inattentive.
Roy v. Augustine, 2001-1021 La.App. 3 Cir. 12/12/01, (La.App.3.Cir. 2001): Whether a plaintiff
pursues Department of Transportation and Development (DOTD) under a theory of negligence
or of strict liability, he or she bears the burden of demonstrating, (1) Department had custody of
the thing that caused the plaintiff's injuries or damages, (2) the thing was defective because it had
a condition that created an unreasonable risk of harm, (3) Department had actual or constructive
knowledge of the defect and failed to take corrective measures within a reasonable time, and (4)
51
the defect in the thing was a cause-in-fact of the plaintiff's injuries.
Cox. v. Moore, 805 So.2d 277, (La.App.3.Cir. 2001): For accident that occurred in 1989,
motorist alleging that intersection was defective had to prove that: (1) the Department of
Transportation and Development (DOTD) owned or had custody of the thing that caused the
damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; and
(3) the defect was a cause-in-fact of the accident; statute adding an element of "actual or
constructive notice" to strict liability was unconstitutional until 1995. LSA-C.C. art. 2317.
Hicks v. State, 34,890 La.App. 2 Cir. 12/7/01, (La.App.2.Cir. 2001): Under the law as it existed
at the time of automobile accident, in order to prove liability in action for negligence against the
Department of Transportation and Development (DOTD), survivors of motorists involved in the
accident had only to prove that: (1) DOTD owned or had custody of the thing that caused the
damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; and
(3) the defect was a cause-in-fact of the accident. DOTD has legal duty to maintain the
highways in a reasonably safe condition, which extends to the protection of attentive drivers or
momentarily inattentive drivers who may be foreseeably placed in danger by an unreasonably
dangerous condition.
Adams v. Parish of East Baton Rouge, 804 So.2d 679, (La.App.1.Cir. 2001): Evidence supported
findings that condition of road which was in care, custody, and control of parish created an
unreasonable risk of harm, and that condition was cause-in-fact of fatal motor vehicle accident
on rainy day, and thus, parish was strictly liable for accident; road, which one citizen referred to
as "homicide alley," contained a curve which had been referred to as "dead man's curve" for
years, road became abnormally slick when wet, there were 136 accidents on road, 52 of which
occurred in wet weather, over a one-year period prior to accident, citizens made numerous
complaints about road prior to accident, and the vehicle which lost control on curve and crossed
center line into path of on-coming traffic was apparently traveling within posted speed limit.
LSA-C.C. art. 2317.
Harvey v. State, 2000-1877 La.App. 4 Cir. 9/26/01, (La.App.4.Cir.,2001): The Department of
Transportation and Development (DOTD) has the duty of constructing and maintaining its
highways in a condition that is reasonable, safe and does not present an unreasonable risk of
harm to persons exercising ordinary care and reasonable prudence.
Sharon v. Connecticut Fire Ins. Co., 270 So.2d 900 (La.App.1.Cir. 1972): City has statutory
authority under its police power to compel the owners of premises located within 300 feet of
sewerage system to connect thereto, but it does not follow from such statutes, and it would be
unconscionable, if an owner of such premises who sustains damage after connecting up can seek
redress only if he can establish negligence, notwithstanding his having been compelled to
connect to a defective municipal-operated sewerage system. LSA-R.S. 33:4004, 33:4041.
Statute providing, inter alia, that it is a servitude due by the estate situated below to receive
waters which run naturally from the estate situated above, provided the industry of man has not
been used to create that servitude, and that proprietor below is not at liberty to raise any dam, or
to make any other work, to prevent this running of water, is applicable to municipalities. LSAC.C. art. 660. Once a city has compelled a property owner to connect to its sewerage system, it
52
incurs the obligation to dispose of sewage properly, and fact that such breach might occur
without negligence would not make it inactionable.
Eschete v. City of New Orleans, 231 So.2d 725 (La.App. 4 Cir. 1970): City did not become
liable for personal injuries and property damages occasioned by flooding in subdivision by virtue
of its authorization and approval of subdivisions despite its knowledge of insufficient drainage
facilities in the area. LSA-R.S. 33:4071.
Friedel v. City of New Orleans, 192 So.2d 234 (La.App. 4 Cir. 1966): The sewerage and water
board of city was immune from liability for flooding damage under statute. LSA-R.S. 29:61329:614.
Maine
1.
Landowner’s Duty to Inspect/Prepare
Quadrino v. Bar Harbor Banking & Trust Co., 588 A.2d 303 (Me. 1991): Property owner owed
no duty of care to pedestrian who tripped on curb that was on another's property and was
constructed and maintained by state Department of Transportation, even though pedestrian's
injuries actually occurred after he tripped, when he struck property owner's driveway.
Beckwith v. Somerset Theatres, 27 A.2d 596 (Me. 1942): Owners of property abutting a public
highway have a right to suitably mark corners of their land with appropriate markers, so long as
such right is exercised with due regard to rights of others, and especially to rights of travelers
lawfully using highway.
Beckwith v. Somerset Theatres, 27 A.2d 596 (Me. 1942): Owners of property abutting a public
highway must use reasonable care to keep their premises abutting highway in such a condition as
not to endanger travelers in their lawful use of highway.
Leighton v. Dean, 102 A. 565 (Me. 1917): Person injured by fall of awning, while inspecting
shop window held invitee to whom owner of shop owed duty of keeping his premises in
reasonably safe condition.
2.
Act of God Defense
3.
Governmental Liability
Kidson v. City of Bangor, 58 A. 900 (Me. 1904): In order to recover against a city for violation
of Rev.St. c. 21, § 18, requiring proper maintenance and repair of public sewers, plaintiff must
show that the drain was a public one, established by the city, that plaintiff was entitled to
drainage through it, that defendant had failed to maintain the sewer or keep it in repair, that the
defect was not in the original system, and that plaintiff suffered injury from this neglect of the
city.
53
Attwood v. City of Bangor, 22 A. 466 (Me. 1891): The city of Bangor has the right to extend its
sewer across the flats of the Penobscot river, to a point below low-water mark; and, in the
performance of its duty to the public in locating the sewer, the city council acts judicially, and
the city is not liable for their act to the owners of wharves, unless the sewer is improperly or
unskillfully constructed, to their special injury.
Maryland
1.
Landowner’s Duty to Inspect/Prepare
Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180 (Md. 1994): Occupier of land owes duty to
occupants of neighboring land to use care when conducting activities on land so as to avoid
causing harm to neighboring land.
Toy v. Atlantic Gulf & Pacific Co., 4 A.2d 757 (Md. 1939): The basic concept underlying the
rule of liability without fault is that a person who elects to keep or bring on his land something
which exposes adjacent land or its owner or occupant to an added danger should be obliged to
prevent its doing damage. Under the rule of liability without fault, occupier is not under an
absolute liability for escape of things which he did not bring or amass on land occupied.
Scott v. Bay, 3 Md. 431 (Md. 1853): Unless a party can show a right either in the nature of a
presumed grant or easement, or in some other mode, to use his property in a particular way, he
cannot so use it if it occasions injury to his neighbors, in the quiet enjoyment of their legal rights
and privileges, and it makes no difference whether precautions were used or not to prevent the
injury complained of.
2.
Act of God Defense
Mark Downs, Inc. v. McCormick Properties, Inc., 441 A.2d 1119 (Md.Spec.App. 1982): An "Act
of God" will excuse mortal man from responsibilities for his conduct only if God is the sole
cause.
3.
Governmental Liability
Chertkof v. Department of Natural Resources, Water Resources Administration, 402 A.2d 1315
(Md.App. 1979): Where stream is adopted as integral part of public sewage or storm water
system, appropriate governmental body is required to maintain stream in such manner as to
prevent damage to adjoining landowners.
Massachusetts
1.
Landowner’s Duty to Inspect/Prepare
Davis v. Westwood Group, 652 N.E.2d 567 (Mass. 1995): Although landowner or possessor
typically is not held to any duty with respect to public highways adjacent to or crossing his land,
he must exercise reasonable care in use of his land so as not to injure traveler on highway.
54
Tryon v. City of Lowell, 565 N.E.2d 456 (Mass.App. 1991): Private landowner owes a duty of
reasonable care to protect lawful entrants against foreseeable dangers on adjacent property.
O'Gorman v. Antonio Rubinaccio & Sons, Inc., 563 N.E.2d 231 (Mass. 1990): Under Alcoholic
Beverages Control Commission regulation describing preexisting common-law duty which
licensees owe to their patrons or guests, when bar has served potentially dangerous patron, duty
may extend beyond premises; when bar has not served patron, however, duty is based merely
upon duty to keep premises safe, and duty applies only on or about premises.
Gage v. City of Westfield, 532 N.E.2d 62 (Mass.App. 1988): In some situations, landowner's
duty to exercise reasonable care does not terminate abruptly at borders of his property but may
extend to include duty to take safety measures related to known dangers on adjacent property.
Polak v. Whitney, 487 N.E.2d 213 (Mass.App. 1985): Property owner's duty to exercise
reasonable care for safety of invitee did not end abruptly at boundary line of property over which
she exercised control, but extended in appropriate circumstances to conditions on adjacent
property.
Wallace v. Folsom's Market, Inc., 177 N.E.2d 778 (Mass. 1961): Abutter in control and
occupation of premises as between himself and public must exercise reasonable care to maintain
premises in a reasonably safe condition so as not to cause injury to public traveling on way, and
if abutter knows or ought to know that use which he is making or permitting to be made of
premises is rendering public way dangerous for those passing, he may be found liable to
pedestrian sustaining injury.
Lambert v. Metropolitan Transit Authority, 157 N.E.2d 869 (Mass. 1959): Landowner, who
maintains a wall or other structure adjacent to public way, has duty to persons on the way to
maintain such a structure in a condition that shall be reasonably safe, having regard to its
probable deterioration under exposure to air, wind and water, as also to all other lawful attendant
conditions which might reasonably be anticipated.
Burke v. Zatoonian, 36 N.E.2d 385 (Mass. 1941): One must exercise reasonable diligence in the
use of his land so as not to injure an adjoining landowner, or an occupant of part of a building
upon one's land, in absence of some agreement to the contrary, or a traveler upon the highway.
Haskins v. Grybko, 17 N.E.2d 146 (Mass. 1938): A lessee in possession of land is bound to
exercise reasonable care to prevent harm on account of his negligence to trespasser upon land of
a third person.
Frizzell v. Metropolitan Coal Co., 10 N.E.2d 115 (Mass. 1937): Defendant's duty toward
plaintiff in action for damage to yacht in boatyard when roof of building on adjacent premises
blew off must be determined by facts respecting defendant's ownership, possession, and control
of premises at such time, without reference to subsequent transactions between defendant and
third parties.
55
Bernard v. Brownell, 173 N.E. 434 (Mass. 1930): Landowner who maintains boundary wall
must keep structure reasonably safe in relation to adjacent land.
Blanchard v. Reynolds, 129 N.E. 303 (Mass. 1921): The duty of an owner of land who
maintains a wall or other structure adjacent to a public way, to persons upon the way, is to
maintain such structure in a condition that shall be reasonably safe, having regards to its probable
deterioration under exposure to air, wind, and water, as also to other lawful attendant conditions
reasonably to be anticipated.
Moffatt v. Kenney, 54 N.E. 850 (Mass. 1899): Where plaintiff was injured from defects in a way
which had been dedicated to a city, but never accepted, at the entrance to which the city posted a
sign that the street was a private way, and was dangerous plaintiff was a mere licensee, and
hence was not entitled to recover against an abutting owner.
Inhabitants of Milford v. Holbrook, 91 Mass. 17 (Mass. 1864): It is the duty of the occupier of a
building who maintains an awning thereon to keep the awning sufficiently strong to sustain the
weight of snow to which it may reasonably be expected to be exposed, and to clear the awning
when more snow is upon it than it can bear, unless the fall of snow is so extraordinary and
sudden that no one would be responsible for it.
2.
Act of God Defense
L.G. Balfour Co. v. Ablondi & Boynton Corp., 338 N.E.2d 841 (Mass.App. 1975): The "act of
God" concept is an irresistible physical force not attributable in any degree to the conduct of man
and not in reason preventable by human foresight, strength or care. A party may escape liability
for damage resulting from an act of God only when the force is of such magnitude that the
damage cannot be reasonably anticipated or when reasonable preventive measures are
insufficient to avoid damage.
Clark-Aiken Co. v. Cromwell-Wright Co., Inc., 323 N.E.2d 876 (Mass. 1975): In cases where
the doctrine of strict liability would otherwise be applicable on the facts, the defendant can avoid
liability by showing that the "escape" was caused by an act of God or an intervening unlawful act
of a third person; likewise, if plaintiff's damage does not directly result from the risk created, or
is not a "natural consequence" thereof, recovery will be denied.
3.
Governmental Liability
Westcott v. City of Boston, 72 N.E. 89 (Mass. 1904): St.1897, pp. 397, 398, c. 426, §§ 2-5,
providing a remedy by petition to recover damages for any land or easement taken by
commissioners in the construction of a conduit, or for any injury committed in doing any act
with reference thereto under section 4 (page 397) did not deprive a property owner injured by the
negligence of those in charge of the construction of such conduit from maintaining an action in
tort against the city for the damages so sustained.
56
Boston Belting Co. v. City of Boston, 67 N.E. 428 (Mass. 1903): A city is liable in an action for
tort for damage to real estate caused by the negligent manner in which it has carried out the
provisions of a statute authorizing the improvement of a stream.
Allen v. City of Boston, 34 N.E. 519 (Mass. 1893): The negligent omission of a city to make a
sewer safe and tight, so as not to injure neighboring property, cannot be excused on the ground
that the jurisdiction as to the construction and location of sewers is vested in the aldermen, when
it does not appear that they ever exercised such jurisdiction, but left the matter entirely to the
superintendent of streets.
Hill v. City of Boston, 122 Mass. 344 (Mass. 1877): For neglect in the construction or repair of
any particular sewer, whereby private property is injured, an action may be maintained against a
city.
Andrews v. Inhabitants of Boylston, 110 Mass. 214 (Mass. 1872): For neglect in the construction
or repair of any particular sewer, whereby private property is injured, an action may be
maintained against a city.
Emery v. City of Lowell, 104 Mass. 13 (Mass. 1870): For neglect in the construction or repair of
any particular sewer, whereby private property is injured, an action may be maintained against a
city.
Child v. City of Boston, 86 Mass. 41 (Mass. 1862): For neglect in the construction or repair of
any particular sewer, whereby private property is injured, an action may be maintained against a
city.
Michigan
1.
Landowner’s Duty to Inspect/Prepare
Johnson v. Bobbie's Party Store, 473 N.W.2d 796 (Mich.App. 1991): General principle that
defendant's duty, for purposes of premises liability, ends with boundaries of premises does not
necessarily preclude liability where passerby is injured outside premises as result of danger
posed by condition existing on premises.
Ward v. Frank's Nursery & Crafts, Inc., 463 N.W.2d 442 (Mich.App. 1990): Aside from
principles of premises liability, owner or occupier of land may be liable in negligence for
affirmative acts done on adjacent public land.
Devine v. Al's Lounge, Inc., 448 N.W.2d 725 (Mich.App. 1989): Occupant of parcel of land
may be responsible for condition of adjoining parcel to which another has title where he has
exercised possession or control over adjoining parcel.
Rodriguez v. Detroit Sportsmen's Congress, 406 N.W.2d 207 (Mich.App. 1987): Law does not
ordinarily impose duty of care upon occupier of land beyond area over which occupier has
possession or control.
57
Cavaliere v. Adults for Kids, 386 N.W.2d 667 (Mich.App. 1986): Possessor of land may not use
land in such way as to create unreasonable risk to those traveling on adjacent public roadway.
Social utility of airports, military bases, public exhibitions and other potentially attractive
roadside activities or construction far outweighs magnitude of risk to those traveling on adjacent
public roadways created by mere presence or conducting of such activities.
2.
Act of God Defense
Potter v. Battle Creek Gas Co., 185 N.W.2d 37 (Mich.App. 1970): Definition of an act of God
relieving defendant from liability for alleged negligence requires an unusual, extraordinary, and
unexpected manifestation of the forces of nature and requires the entire exclusion of human
agency from the cause of the injury or loss.
3.
Governmental Liability
Weaver v. City of Detroit, 252 Mich.App. 239 (Mich.App. 2002): No action may be maintained
under the highway exception to governmental immunity unless it is clearly within the scope and
meaning of the statute. M.C.L.A. § 691.1402(1).
Sekulov v. City of Warren, 251 Mich.App. 333 (Mich.App. 2002): Governmental Immunity Act
limits liability under the highway exception to the governmental agency having jurisdiction over
the highway at the time of the injury; only one governmental agency at a time can have
jurisdiction over a highway, and there is no concurrent jurisdiction, M.C.L.A.§ 691.1402(1).
Minnesota
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
Vanden Broucke v. Lyon County, 222 N.W.2d 792 (Minn. 1974): To fall within purview of
doctrine of "act of God" an event resulting from force of nature must be unexpected,
unforeseeable and sole cause of the accident.
3.
Governmental Liability
Chabot v. City of Sauk Rapids, 412 N.W.2d 371 (Minn.App. 1987): City had no discretionary
immunity from liability to homeowner for property damage resulting from flooding of city's
storm sewer holding pond; while planning and installation of storm sewer system were planning
level decisions falling within discretionary immunity, decision not to remedy problem of holding
pond after city had noticed that it was inadequate was an operational level decision for which
city was not immune. M.S.A. §§ 466.02, 466.03, subd. 6. By obtaining liability insurance, city
waived immunity to extent of its coverage for liability to property owner for property damage
resulting from flooding of city's storm sewer holding pond.
58
Mississippi
1.
Landowner’s Duty to Inspect/Prepare
Mizell v. Cauthen, 169 So.2d 814 (Miss. 1964): Landowner who owned property which abutted
the public way and maintained on property an oak tree some three feet in diameter, which leaned
approximately three degrees toward the street, was under duty of using reasonable care to
prevent his property from becoming a source of danger to persons using the public way.
2.
Act of God Defense
3.
Governmental Liability
Missouri
1.
Landowner’s Duty to Inspect/Prepare
Mills v. Crawford, 822 S.W.2d 548 (Mo.App.S.Dist. 1992): Possessor of land is subject to
liability for physical harm to others outside of land caused by activity carried on by him thereon
which he realizes or should realize will involve unreasonable risk of physical harm to them under
same conditions as though activity were carried on at neutral place.
Butts v. National Exch. Bank, 72 S.W. 1083 (Mo.App. 1903): The owner of a building abutting
on a street is required to maintain his building in such a reasonably safe condition that
pedestrians on the sidewalk will not sustain injury.
2.
Act of God Defense
Robinson v. Missouri State Highway and Transp. Com’n, 24 S.W.3d 67 (Mo.App.W.Dist. 2000):
Any negligence on the part of the defendants which concurred with the Act of God as the
proximate cause of the accident would reinstate their responsibility; when the result in part is
ascribable to the participation of man, either through active intervention or neglect or failure to
act, the whole occurrence is thereby humanized and removed from the operation of the rules
applicable to the Acts of God.
McCutcheon v. Tri-County Group XV, Inc., 920 S.W.2d 627 (Mo.App.S.Dist. 1996): Defense
due to act of nature, often referred to as "act of God," is only available where it is event in nature
so extraordinary that history of climatic variations in locality affords no reasonable warning of
their coming and is not humanized through participation of human beings.
Arthur v. Royse, 574 S.W.2d 22 (Mo.App. 1978): In order to invoke "Act of God" defense,
human actor must have exercised due care prior to intervention of superhuman cause.
3.
Governmental Liability
59
Koppel v. Metropolitan St. Louis Sewer Dist., 848 S.W.2d 519 (Mo.App. E.D. 1993):
Metropolitan sewer district was shielded from tort liability by doctrine of sovereign immunity.
Waiver of metropolitan sewer district's immunity from tort action for dangerous property
condition occurs only when there is dangerous condition on property, plaintiff's injuries directly
resulted from dangerous condition, dangerous condition created reasonably foreseeable risk of
kind of harm a plaintiff incurred, and public employee negligently created condition or public
entity had actual or constructive notice of dangerous condition. V.A.M.S. § 537.600, subd. 1(2).
Fletcher v. City of Independence, 708 S.W.2d 158 (Mo.App.W.Dist. 1986): A municipal
corporation which lays out a system of sewers and drains exercises a proprietary function and
owes a duty of reasonable care in its construction and maintenance not to injure private property.
Power to construct a system of sewers does not authorize a municipality to create a nuisance. A
municipality is answerable for private injury from its system of sewers and drains, whether from
negligence or from the unreasonableness of the use, and owes the duty to correct the dysfunction
in a drain or sewer within reasonable time after notice. A municipal sewer system so constructed
or maintained as to be inadequate for its function subverts its intended purpose of benefit, and
when that condition invades private premises and interferes with that source of enjoyment, the
law strikes the balance, prima facie, in favor of the harm.
Peacock v. City of Dexter, 544 S.W.2d 80 (Mo.App. 1976): City is not required to fence all
roadside ditches which become filled with water after heavy rains. Where there was no hidden
danger or entrapment, and no deep hole or drop-off in ditch, and where parents were aware that
ditch filled with water after heavy rains, city had no duty to fence drainage ditch between
sidewalk and street and not liable for death of four-year-old boy who apparently fell into ditch,
was washed through culvert and drowned.
Anello v. Kansas City, 286 S.W.2d 49 (Mo.App. 1955): A negligent breach of city's duty to
maintain its sewers in a reasonably safe condition is actionable.
Gleason v. City of Kirksville, 118 S.W. 120 (Mo.App. 1909): To hold a city liable for grading a
street by a fill with insufficient culverts, obstructing the flow of surface water, it is necessary to
show that the work was directed by ordinance.
Montana
1.
Landowner’s Duty to Inspect/Prepare
Limberhand v. Big Ditch Co., 706 P.2d 491 (Mont. 1985): Fact that instrumentality causing
harm is located adjacent to landowner's property does not bar action against landowner for
injuries sustained by persons properly using landowner's premises, where instrumentality poses
clear and foreseeable danger. MCA 27-1-701.
2.
Act of God Defense
3.
Governmental Liability
60
Folda v. City of Bozeman, 582 P.2d 767 (Mont. 1978): City which owned portion of parking lot
adjacent to creek had no duty to warn 17-year-old girl using parking lot of danger of creek which
was natural condition constituting open and obvious rather than defect or obstruction caused by
city. Where creek at time of accident was in flood stage and almost overflowing, danger of creek
was obvious and thus city and landowner who were owners of parking lot adjacent to creek were
under no duty to warn 17-year-old girl who drowned in creek of danger of creek.
Nebraska
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
Maloney v. Kaminski, 368 N.W.2d 447 (Neb. 1985): "Act of God" is a manifestation of nature
so unusual and extraordinary that it could not under normal circumstances have been reasonably
anticipated or expected.
3.
Governmental Liability
Nevada
1.
Landowner’s Duty to Inspect/Prepare
Harry v. Smith, 893 P.2d 372 (Nev. 1995): Landowners' liability for injuries occurring off the
premises does not turn on their status as landowners and they are instead required to conform to
normal standards of reasonableness under general principles of tort law.
2.
Act of God Defense
3.
Governmental Liability
New Hampshire
1.
Landowner’s Duty to Inspect/Prepare
Lane v. Groetz, 230 A.2d 741 (N.H. 1967): Property owner has duty to exercise reasonable care
to see that activities conducted upon owner's premises, or conditions allowed to exist thereon,
pose no threat to users of public way abutting the property.
Morin v. Manchester Housing Authority, 195 A.2d 243 (N.H. 1963): Owner or possessor of
premises bordering public highway or sidewalk must prevent artificial conditions on his land
from being unreasonably dangerous to travelers upon adjoining highway. Housing authority
which exercised control over grounds of project and retained possession of them for common use
of its tenants was under duty to exercise care to prevent injury to passers-by on highway from
conditions maintained on premises.
61
2.
Act of God Defense
3.
Governmental Liability
Mitchel v. Dover, 99 A.2d 409 (N.H. 1953P): The duty owed by a municipality to persons liable
to be damaged by its operation of a sewage system for the public benefit is that of ordinary care
and prudence under circumstances, which includes a duty to anticipate matters that could
reasonably be foreseen to cause damage.
Pinsonneault v. City of Concord, 120 A. 257 (N.H. 1923): Towns are liable for damage caused
by defective sewers.
New Jersey
1.
Landowner’s Duty to Inspect/Prepare
Mulraney v. Auletto's Catering, Nat. Valet Parking Services, 680 A.2d 793 (N.J.Super.App.
1996): Business proprietor has duty, at least under some circumstances, to undertake reasonable
safeguards to protect its customers from dangers posed by crossing adjoining highway to area
proprietor knows or should know its customers will use for parking. Restatement (Second) of
Torts § 349.
Black v. Borough of Atlantic Highlands, 623 A.2d 257 (N.J.Super.App. 1993): To ordinary
landowners unprotected by statutory immunities, liability in tort to adjoining property owners
may be established for damages proximately flowing from dangerous conditions caused by
overhanging branches or matter dropping from trees which are not deemed natural when
specifically planted for purposes of defendant landowner.
Kolba v. Kusznier, 599 A.2d 194 (N.J.Super.Law 1991): If there is artificial condition on land of
which property owner knows, or should know, and that condition causes injury to persons
outside land, property owner should be liable.
Warrington v. Bird, 499 A.2d 1026 (N.J.Super.App. 1985): Duty of proprietor to exercise
reasonable care for safety of its patrons extends to conditions obtaining at parking lot and
requires that patrons not be subjected to unreasonable risk of harm in traversing expected route
between two locations.
Brownsey v. General Printing Ink Corp., 193 A. 824 (N.J.Sup. 1937): A landowner must use
reasonable care to safeguard his neighbor from risk of harm, known or reasonably foreseeable,
through falling of ice and snow from roof of structure erected upon his premises. While
possessor is not liable for bodily harm to others outside land by natural condition thereof, he is
under a duty in respect of structures and other artificial creations classified as "nonnatural" to
safeguard adjacent owner against unreasonable hazards arising from their plan, construction,
location, or otherwise, and breach of such duty resulting in damage constitutes actionable
negligence. The doctrine that detriment incident to natural coming upon one's land of water
naturally collecting on surface of his neighbor's, though its course be diverted by structures
62
erected upon neighbor's land, is not redressible, is limited to running surface water, and does not
bar recovery for injuries from falling of ice and snow.
2.
Act of God Defense
3.
Governmental Liability
Barney's Furniture Warehouse of Newark, Inc. v. City of Newark, 303 A.2d 76 (N.J. 1973):
Municipality does not have positive duty to keep its sewer plant abreast of developing needs.
New Mexico
1.
Landowner’s Duty to Inspect/Prepare
Bober v. New Mexico State Fair, 808 P.2d 614 (N.M. 1991): Harm that is caused, in whole or in
part, by activity or condition on particular premises cannot be viewed as unforeseeable as matter
of law merely because it happens to manifest itself beyond property line; extent of existing duty
of care is to be determined not with reference to physical locations, but rather with reference to
foreseeability of harm from hazardous condition.
2.
Act of God Defense
Trotter v. Callens, 546 P.2d 867 (N.M.App. 1976): Supreme Court in abolishing defense of
unavoidable accident did not by implication abolish "Act of God" defense.
2.
Governmental Liability
Rutherford v. Chaves County, 47 P.3d 448 (N.M.App. 2002): Tort Claims Act waives
governmental immunity for maintenance of a highway, but not for the design of a highway.
NMSA 1978, § 41-4-11. State Department of Transportation has the common-law duty to
exercise ordinary care to protect the general public from foreseeable harm on the highways of the
state; counties have the same duty of care with respect to the maintenance of roads and highways
under their jurisdiction.
Hanson v. Board of County Road Com’rs of County of Mecosta, 638 N.W.2d 396 (Mich. 2002):
County road commission's duty to "repair and maintain" roadways, under highway exception to
governmental immunity statute, does not include a duty to design, or to correct defects arising
from the original design or construction of highways. M.C.L.A. § 691.1402(1).
Adams v. Japanese Car Care, 743 P.2d 635 (N.M.App. 1987): City's inspection of private sewer
clean-out, at time of its initial construction to ensure its compliance with building codes, did not
constitute "operation" of liquid collection or disposal utilities for purposes of Tort Claims Act,
and thus city's immunity had not been waived. NMSA 1978, §§ 41- 4-8, 41-4-8, subd. A.
See publication Words and Phrases for other judicial constructions and definitions.
63
Cardoza v. Town of Silver City, 628 P.2d 1126 (N.M.App. 1981): Actual or constructive notice
of defect which causes injury loses its effectiveness when city itself, which has full and complete
charge of its streets, sidewalks or systems, including sewer system, creates or causes defective or
dangerous condition to exist.
New York
1.
Landowner’s Duty to Inspect/Prepare
532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Center, Inc., 96 N.Y.2d 280 (N.Y. 2001):
Landowner's duty of care includes the duty to prevent foreseeable injury to neighboring property.
A landowner who engages in activities that may cause injury to persons on adjoining premises
owes those persons a duty to take reasonable precautions to avoid injuring them, but a landowner
does not owe a duty to protect an entire urban neighborhood against purely economic losses.
Robertson v. Greater Buffalo Auto Auction, Inc., 724 N.Y.S.2d 249 (N.Y.A.D. 4 Dept. 2001):
Landowners owed a duty to persons traveling on the adjoining public highway to maintain their
premises so as not to impair the free and safe passage on the highway.
Grant v. Schwartz, 713 N.Y.S.2d 769 (N.Y.A.D. 2 Dept. 2000): There is no common-law duty
on a landowner to control the vegetation on his or her property for the benefit of users of a public
highway.
Golan v. Astuto, 662 N.Y.S.2d 576 (N.Y.A.D. 2 Dept. 1997): Neighbors did not have duty to
take reasonable steps to prevent any potential harm that may have occurred to plaintiff on his
property as result of his attempt to saw tree that had fallen onto his property from neighbors'
adjoining property, where there was no evidence that tree was defective or that neighbors had
actual or constructive notice of any defective condition in tree before it fell.
Azriliant v. Newfy, Inc., 644 N.Y.S.2d 805 (N.Y.A.D. 2 Dept. 1996): Generally, owner or
occupier of property owes no duty of care to others to warn them of, or protect them from,
defective or dangerous condition on neighboring premises.
Kaufman v. Silver, 642 N.Y.S.2d 73 (N.Y.A.D. 2 Dept. 1996): Owner of abutting property owes
no duty to warn or repair defective or dangerous conditions on neighboring property unless
abutting property owner causes or contributes to those conditions.
Badou v. New Jersey Transit Rail Operations, 633 N.Y.S.2d 530 (N.Y.A.D. 2 Dept. 1995):
Owner or occupier of abutting property owes no duty to warn or protect others from defective or
dangerous condition on neighboring property unless owner of abutting property causes or
contributes to that condition.
Vought v. Hemminger, 632 N.Y.S.2d 606 (N.Y.A.D. 2 Dept. 1995): Generally, owner or
occupier of abutting property owes no duty of care to others to warn or to protect them from
defective or dangerous condition on neighboring premises. Exception to rule, that owner or
occupier of abutting property owes no duty of care to others to warn or to protect them from
64
defective or dangerous condition on neighboring premises, exists when owner of abutting
property created or contributed to dangerous condition.
Pensabene v. Incorporated Village of Valley Stream, 609 N.Y.S.2d 75 (N.Y.A.D. 2 Dept. 1994):
As general rule, owner or occupier of abutting property owes no duty of care to others to warn
them of or protect them from defect or dangerous condition on neighboring premises.
Ingenito v. Robert M. Rosen, P.C., 589 N.Y.S.2d 574 (N.Y.A.D. 2 Dept.,1992): Landowner has
no common-law duty to control vegetation on his or her property for benefit of users of a public
highway.
Gayden v. City of Rochester, 539 N.Y.S.2d 211 (N.Y.A.D. 4 Dept. 1989): Owner of property
adjacent to concrete waterway in which seven-year-old boy drowned owed duty to exercise
reasonable care in maintenance of its property to prevent foreseeable injury that might occur on
adjoining property.
Ivancic v. Olmstead, 488 N.E.2d 72 (N.Y. 1985): At least as to adjoining landowners, concept
of constructive notice with respect to liability for falling trees is that there is no duty to
consistently and constantly check all trees for nonvisible decay; rather, manifestation of such
decay must be readily observable to require landowner to take reasonable steps to prevent harm.
Ivancic v. Olmstead, 488 N.E.2d 72 (N.Y. 1985): Fact that landowner did not inspect tree near
boundary with neighbors' property, from which tree overhanging limb fell and struck neighbors'
son during heavy windstorm, did not render landowner liable for son's injuries, where there was
no indicia of decay or disease to put landowner on notice of defective condition of limb so as to
trigger her duty as landowner to take reasonable steps to prevent potential harm.
Rochette v. Town of Newburgh, 449 N.Y.S.2d 1013 (N.Y.A.D. 2 Dept. 1982): Holding
defendants liable as owners of property adjacent to lake for severe and permanent injuries
sustained by minor plaintiff as a result of a collision on lake between two ice sailboats during a
racing regatta would not impose an impossible burden upon defendants inasmuch as they were
only required to maintain reasonable safety precautions. While difficulties in regulating
activities on lake were factors to be considered in determining whether to impose liability upon
defendants as owners of property adjacent to lake where severe and permanent injuries were
sustained by minor plaintiff as a result of a collision on lake between ice sailboats during a
racing regatta, such difficulties in no way vitiated duty of defendants as owners or holders of
possessory interests to provide what was deemed to be appropriate safety measures under
circumstances then existing.
Drake v. State, 416 N.Y.S.2d 734 (N.Y.Ct.Cl. 1979): Landowner must exercise reasonable care
to abate a known dangerous condition existing on his lands if he has an opportunity to do so; it
makes no difference whether the source of the danger relates to a physical condition, or arises
from third parties' activities, including the known activities of trespassers, or whether the person
injured is on the land itself or on an adjacent highway.
65
DeRosa v. Fordham University, 238 N.Y.S.2d 778 (N.Y.A.D. 1 Dept. 1963): Landowner's
possession and control gives him power of control over conduct of those whom he allows to
enter land which he is required to exercise for protection of those outside.
Gillette v. Luone Co., 114 N.Y.S.2d 713 (N.Y.Sup. 1952): Owner of a building abutting upon a
public street must maintain it in such condition that it will not become dangerous to the traveling
public.
Rashid v. Weill, 46 N.Y.S.2d 711 (N.Y.Sup. 1944): An owner of property adjoining vacant lot
should have foreseen the probability of a fall into pit by air raid warden and guarded against it by
erecting a fence or rail upon her wall.
Douglas v. Johnson, 16 N.Y.S.2d 644 (N.Y.Sup. 1939): The owner of a building abutting upon a
public street must maintain it in such condition that it shall not become dangerous to the
traveling public.
Kesten v. Einhorn & Singer Development Corp., 249 N.Y.S. 205 (N.Y.A.D. 1 Dept. 1931):
Owner permitting employees to toss rubbish from windows of building under construction was
bound to use reasonable care not to injure persons on sidewalk.
Nenstiehl v. Friedman, 153 N.Y.S. 120 (N.Y.Sup.App.Term 1915): Defendants, who were
casting boxes and refuse on an adjacent lot which was not their own, cannot, having struck a
child playing on the property, assert in defense that it was a trespasser.
McNulty v. Ludwig & Co., 138 N.Y.S. 84 (N.Y.A.D. 2 Dept. 1912): One constructing a sign
upon a building adjacent to a street must exercise reasonable care as a reasonably prudent man to
construct and maintain it, so as to withstand the attack of the elements in the locality such as
might be anticipated to occur.
Kleinberg v. Schween, 119 N.Y.S. 239 (N.Y.A.D. 1 Dept. 1909): Defendant maintained upon
his land an unguarded opening or areaway, which extended to and abutted upon adjoining land
which belonged to another; and plaintiff, being lawfully upon the adjoining premises, in the
nighttime, fell into the areaway. Held, that plaintiff could not recover on the theory of the
maintenance by defendant upon his land of a structure which, by its operation or its fall, causes
injury to a person upon adjoining land, as the plaintiff was in perfect safety as long as he
remained upon the adjoining land.
Gordon v. Schween, 117 N.Y.S. 191 (N.Y.Sup. 1909): An owner of premises is under no duty,
at common law or by statute, as to a stranger on adjoining premises, to guard an areaway
abutting thereon.
Wallace v. John A. Casey Co., 116 N.Y.S. 394 (N.Y.A.D. 2 Dept. 1909): Where a three year old
child follows an older child to a place where the latter is sent for wood, and while waiting there
is injured by a barrel given to his companion, thrown from a window into the street, he cannot be
considered merely a passer-by in the street.
66
Hughes v. Harbor & Suburban Bldg. & Sav. Ass'n, 115 N.Y.S. 320 (N.Y.A.D. 2 Dept. 1909):
One in possession and control of tall buildings, beneath which pedestrians walk must exercise
care commensurate with the danger to prevent the fall of articles on passers-by.
McNulty v. Ludwig & Co., 109 N.Y.S. 703 (N.Y.A.D. 2 Dept. 1908): Where a sign had been
put up over the entrance to defendant's premises, defendant was not bound at his peril to see that
it was properly fastened to the building and to keep it from falling into the street; the duty in such
a case being merely to use reasonable care.
Weitzmann v. A.L. Barber Asphalt Co., 83 N.E. 477 (N.Y. 1908): Where an owner or occupier
of land uses on it appliances, devices, or methods that may cause injury to persons on adjoining
premises or in public places, such owner or occupier must take reasonable precaution to avoid
injuring them. Judgment (1907) 105 N.Y.S. 1149, 120 App.Div. 896, reversed.
Mullen v. St. John, 57 N.Y. 567 (N.Y. 1874): The owner of a building adjoining a street or
highway is under a legal obligation to take reasonable care that it is kept in proper condition, so
that it shall not fall into the street or highway and injure persons lawfully there.
2.
Act of God Defense
Tel Oil Co., Inc. v. City of Schenectady, 757 N.Y.S.2d 121 (N.Y.A.D. 3 Dept 2003):
By asserting the "act of God defense," the burden falls upon negligence defendants to show that
those losses and injuries were occasioned exclusively by natural causes, such as could not be
prevented by human care, skill and foresight; if there be any co-operation of man, or any
admixture of human means, the injury is not, in a legal sense, the act of God.
See publication Words and Phrases for other judicial constructions and definitions.
Tel Oil Co., Inc. v. City of Schenectady, 718 N,Y.S.2d 410 (N.Y.A.D. 3 Dept. 2000): Act of God
denotes those losses and injuries occasioned exclusively by natural causes, such as could not be
prevented by human care, skill and foresight, and if there is any co-operation of man, or any
admixture of human means, injury is not act of God.
Pickersgill v. City of New York, 642 N.Y.S.2d 469 (N.Y.City Civ.Ct. 1996): Injury is caused by
"act of God" when it happens by direct, immediate, and exclusive operation of forces of nature,
uncontrolled or uninfluenced by power of man and without human intervention, and is of such
character that it could not have been prevented or escaped from by any amount of foresight or
prudence, or by any reasonable degree of care or diligence. "Act of God" defense should not be
applied where negligent acts or omissions of defendant contribute to injury sustained.
Prashant Enterprises, Inc. v. State, 614 N.Y.S.2d 653 (N.Y.A.D. 3 Dept. 1994): "Act of God" is
unusual, extraordinary and unprecedented event.
Lee v. Consolidated Edison Co. of New York, 407 N.Y.S.2d 777 (N.Y.City Civ.Ct. 1978): A
loss cannot be attributed to an act of God if it is result of any person's aid or interference, if
concurrence of human agency is involved or if injury might have been avoided by human
prudence and foresight.
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Smith v. ABC Realty Co., 322 N.Y.S.2d 207 (N.Y.City Civ.Ct. 1971): Not every crime is an
intervening cause nor is every human intervention, act of God or combination of both sufficient
to excuse original neglect. Not every crime is an intervening cause nor is every human
intervention, act of God or combination of both sufficient to excuse original neglect.
3.
Governmental Liability
Evans v. Stranger, 762 N.Y.S.2d 678 (N.Y.A.D. 3 Dept. 2003): A municipality has a continuing
duty to review a roadway design plan in light of its actual implementation, but has no obligation
to undertake expensive reconstruction of older roads solely based on updated highway safety
standards.
Blount v. Town of West Turin, 759 N.Y.S.2d 851 (N.Y.Sup. 2003): Recreational use statute
applied to town roads opened for snowmobiling by specific town action and to those opened for
snowmobiling by town action in designating them for seasonal use, and thus town was immune
from liability for any general negligence in action by snowmobiler for injuries allegedly
sustained during accident which occurred on groomed trail that was on town highway.
McKinney’s General Obligations Law § 9-103. If a highway is not suitable for snowmobile
operation under recreation law, then the recreation use statute limitation on liability does not
apply to protect a city from tort liability for general negligence, and ordinary highway liability
rules are involved that state that the road needs to be safe only for those lawfully operating on
them. McKinney’s PRHPL § 25.05; McKinney’s General Obligations Law § 9-103. When
acting in connection with highways, a municipality acts in a governmental role, that is, a
traditional area not primarily reserved to private sector type activities that involve a proprietary
role.
Duger v. Estate of Carey, 744 N.Y.S.2d 262 (N.Y.A.D. 3 Dept. 2002): Statute making county
liable for injuries caused by defective highways and bridges allows a claim against a county
based on constructive notice of a dangerous condition on a county highway. McKinney’s
Highway Law § 139, subd. 2.
James v. New York State Bridge Authority, 743 N.Y.S.2d 151 (N.Y.A.D. 2 Dept. 2002): Bridge
Authority had qualified immunity in negligence action seeking damages for death of tractortrailer driver who was killed when his vehicle struck a guardrail on a curve approaching a bridge,
where Bridge authority had raised speed limit on the curve from 40 miles per hour to 55 miles
per hour upon the recommendation of an engineering firm which had conducted a speed report,
and the expressed focus of the speed report was the potential impact of an increased speed limit
on such issues as safety.
Smith v. State, 742 N.Y.S.2d 792 (N.Y.Ct.Cl. 2002): The state is under a non-delegatory duty to
maintain its roadways in a reasonably safe condition for motorists who obey the rules of the
road. Where appropriate, the state must erect and maintain guide rails on its roadways, but it is
not an insurer of the safety of motorists, and negligence cannot be inferred from the mere
happening of an accident.
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Affleck v. Buckley, 758 N.E.2d 651 (N.Y. 2001): A governmental body may be liable for a
traffic planning decision only when its study is plainly inadequate, or there is no reasonable basis
for its plan. Something more than a choice between conflicting opinions of experts is required
before a governmental body may be held liable for negligently performing its traffic planning
function; rather, plaintiff must show not merely that another option was available but also that
the plan adopted lacked a reasonable basis.
Biernacki v. Village of Ravena, 664 N.Y.S.2d 682 (N.Y.A.D. 3 Dept. 1997): Duties of municipal
authorities in adopting general plan of drainage, and determining when and where sewers shall
be built, of what size, and at what level, are of a quasi-judicial nature, involving exercise of
deliberate judgment and large discretion, which is not subject to revision by court or jury in
private action for not sufficiently draining particular lot of land.
Sniper v. City of Syracuse, 530 N.Y.S.2d 374 (N.Y.A.D. 4 Dept. 1988): A municipality does not
have a continuing duty to insure the safety of buildings after certificates of occupancy are issued
or to maintain lateral sewer lines.
Sgarlata v. City of Schenectady, 353 N.Y.S.2d 603 (N.Y.Sup. 1974): Municipality has no
immunity from suit where it controls and maintains drainage or sewer system and has obligation
to keep drains in good repair and free from obstruction and is liable for negligence in performing
this duty.
Beck v. City of New York, 199 N.Y.S.2d 584 (N.Y.Sup. 1960): Duty of providing sewerage and
drainage is quasi-judicial, and in determining the necessity, location, capacity, etc., officers upon
whom duty is imposed are required to exercise judgment and discretion, and no action lies at
instance of an individual for damages based upon either a failure to act or an error of judgment in
acting, but this principle cannot be extended so as to grant immunity to municipalities for acts
which result in the invasion of private property or creation of public or private nuisances.
Steeley v. City of New York, 157 N.Y.S.2d 734 (N.Y.Sup. 1956): City had a duty to provide an
employee of its independent contractor engaged to construct sewer with a safe place to work.
Where city which had engaged contractor to construct sewer and connect it to live sewer could
have, by exercise of reasonable care, discovered how dangerous were premises where
contractor's employees were working, it was guilty of negligence in failing to do so and to
provide them with safe place to work when they, in presence of city inspector, broke through
bulkhead between new sewer and live sewer and sewage rushed into new sewer and they were
asphyxiated in a matter of minutes.
Williams v. State, 74 N.Y.S.2d 647 (N.Y.Ct.Cl. 1947): A municipal corporation acts
ministerially in constructing sewers, and in keeping them in repair, and is bound to the exercise
of needful prudence, watchfulness and care.
William P. Greiner Bldg. Corporation v. Town of Cheektowaga, 181 N.Y.S. 759 (N.Y.Sup.
1920): Municipalities are not liable for errors of judgment in making such public improvements
as streets, sewers, etc.
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Messersmith v. City of Buffalo, 122 N.Y.S. 918 (N.Y.A.D. 4 Dept. 1910): A city is liable for the
negligence of its employes in constructing and maintaining a waterworks to supply consumers,
so that it would be liable for injuries resulting from the bursting of a main by reason of
negligently making a connection for a consumer.
Jung v. City of New York, 116 N.Y.S. 368 (N.Y.A.D. 2 Dept. 1909): A city was not liable for
damages to abutting property through surface water flowing down the street, where that was the
natural course of drainage and the city in no way interfered with it or exercised any authority
over the street.
Punsky v. City of New York, 114 N.Y.S. 66 (N.Y.A.D. 2 Dept. 1908): In the absence of
negligence in collecting water and furnishing outlet therefor through sewers, a city is not liable
for the flooding of a cellar, by the natural flow of water along the street after a heavy downpour.
Munn v. City of Hudson, 70 N.Y.S. 525 (N.Y.A.D. 3 Dept. 1901): Where a city failed to use
reasonable care in constructing a sewer according to plans and specifications, and failed to keep
it in repair thereafter, and plaintiff's health was injured by sewage therefrom which entered her
house, the city was liable for such injuries to her person. Where a city failed to use reasonable
care in constructing a sewer according to plans and specifications, and failed to keep it in repair
thereafter, whereby plaintiff's property and goods stored therein were damaged, the city was
liable.
Bolton v. Village of New Rochelle, 32 N.Y.S. 442 (N.Y.Sup. 1895): Laws 1889, c. 201, and
Laws 1893, c. 220, giving to the drainage commissioners the entire charge and control of sewers,
and providing that such commissioners may sue and be sued, do not relieve the municipality
from liability for a nuisance arising from the manner in which a sewer is maintained.
Garratt v. Trustees of Village of Canandaigua, 32 N.E. 142 (N.Y. 1892): The plan adopted by the
trustees of a village under Laws 1886, c. 658, authorizing them to construct a system of drainage
and sewerage, was to dispose of the sewage through the outlet of a lake, which required the
removal of obstructions therein, in order to produce a more rapid flow. The statute contemplated
that such removal would benefit the lands along the stream subject to overflow, which were
therefore to be assessed for benefits. The statute also provided that the waters of the lake should
be maintained at a height not less than their ordinary height at low-water mark, and for this
purpose the trustees were authorized to erect and maintain in the outlet locks with gates. Held,
that a landowner along the outlet, who had been assessed for benefits, could not complain of the
fact that the gates were kept wide open, thereby causing the waters to flow out to such an extent
as to overflow his lands.
Watson v. City of Kingston, 21 N.E. 102 (N.Y. 1889): Plaintiff's premises were on the side of a
steep hill or ravine, and on a lower grade than that established for the street, and subject to be
overflowed by water collecting on the street between plaintiff's premises and the intersection of
another street, where there are sewers. On one or two occasions of great freshets, when the
sewers were temporarily clogged by debris, additional water flowed thereon. It did not appear
that the premises were subjected to a further burden than would be borne in a natural state. Held,
that no action against the municipality would lie.
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Smith v. City of New York, 66 N.Y. 295 (N.Y. 1876): A municipal corporation can only be
made liable for damages resulting from the overflow of a sewer upon proof of some fault or
neglect upon its part, either in the construction of the sewer or in keeping it in proper repair.
Wilson v. City of New York, 1 Denio 595 (N.Y.Sup. 1845): Under 2 Rev.Laws 1813, p. 407, §
175, empowering the authorities of New York City to make sewers, drains, and vaults in any part
of the city, an action will lie against the city for a neglect to repair existing sewers and drains, by
which an individual is injured.
North Carolina
1.
Landowner’s Duty to Inspect/Prepare
As of November 2003, no North Carolina cases have been uncovered which directly discuss the
degree of precaution necessary in the context of an approaching storm. Absent direct law on the
issue, establishing liability of adjoining property owners should begin with the principle that the
law imposes a duty or ordinary care upon every person who engages in an active course of
conduct. Toone v. Adams, 262 N.C. 403, 409 (1964). In addition, North Carolina law imposes a
duty of care on a property owner to maintain man-made structures, cultivated trees, and other
pieces of human-cultivated landscaping, and naturally occurring objects which the owner knows
are in an unreasonably dangerous condition. Matheny v. Stonecutter Mills Corp., 107 S.E.2d
143 (NC 1959). The duty generally applies to lawful visitors but not to trespassers. Nelson v.
Freedland, 507 S.E.2d 882, 892 (NC 1998). It extends, however, to drivers on public roads and
to neighboring property owners, so long as the property owner had actual or constructive
knowledge of the dangerous condition. Gibson v. Hunsberger, 428 S.E.2d 489 (NC Ct. App.
1993) (landowner is liable to drivers on public roads adjacent to land for dangerous conditions of
which the owner had actual or constructive notice, but is not obligated to inspect property in
rural, wooded settings); cf. Rowe v. McGee, 168 S.E.2d 77 (NC Ct. App. 1969) (owner who
knows its tree is decayed and likely to fall and damage plaintiffs’ property has duty to eliminate
danger but is not liable to defendant if plaintiff had equal ability to control the condition);
Annotation, “Failure to Exercise Due Care to Prevent all of Tree”, 27 AM. JUR. 2d, Proof of
Facts 639, section 1, at 645 (noting that both owners and occupiers of property have been held
liable where the requisite control was found.).
The Gibson case held that in a rural, wooded setting, a property owner is not obligated to inspect
the property to uncover dangerous conditions of which the owner was not previously aware.
This is consistent with the common law rule absolving the landowner of any duty to find or
remedy naturally occurring conditions, a rule designed to avoid burdening rural landowners with
inspection of large unpopulated woodlands. See generally Keeton, Prosser and Keeton on the
Law of Torts, § 57 (5th ed. 1984). Other jurisdictions have held similarly. See, e.g., Ivancic v.
Olmstead, 66 N.Y.2d 349, 488 N.E.2d, cert. denied 90 L. Ed 658, 106 S. Ct. 1975 (1985) (a duty
to remedy the hazard arises where the landowner has actual or constructive knowledge of it, but
landowner has no duty to inspect regularly for non-visible decay of trees). However, the Gibson
case did not specifically address the duty of a landowner in a more populated setting.
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2.
Trespass and Nuisance
To prove nuisance, plaintiff must show “an unreasonable interference with the use and
enjoyment of their property.” Whiteside Estate v. Highlands Cove, 553 S.E.2d 431, 436, 146
N.C.App. 449 at ___ (2001). To establish trespass, plaintiff must prove: (1) possession of the
land, (2) unauthorized entry onto the land by another, and (3) resulting damage to the property
owner. Whiteside Estate, 553 S.E.2d at 438.
Nothing in the elements of these two causes of action requires the defendant’s actions to be
willful for plaintiff to prevail. Both nuisance and trespass can occur even when the defendant
did not intend any damage. Whiteside Estate, 553 S.E.2d at 436. However, an action for
nuisance requires some form of wrongful conduct for plaintiff to prevail. Even an
“unintentional” nuisance requires plaintiff to show that the defendant’s conduct was “negligent,
reckless, or ultrahazardous.” Whiteside Estate, 553 S.E.2d at 436.
The act of trespass requires, however, may provide a basis for recovery even when there is no
negligence, as noted in the following passage from York Industrial Center, Inc. v. Michigan
Mutual Liability Company, 155 S.E.2d 501, 506 271 N.C. 158, __ (1967):
In the absence of negligence, which is not shown in the present case, trespass to
land requires an intentional entry thereon. Schloss v. Hallman, 255 N.C. 686, 122
S.E.2d 513. It does not, however, require that such entry be wilful and an action
for trespass lies even though the entry was made under bona fide belief by the
defendant that he was the owner of the land and entitled to its possession or was
otherwise entitled to go upon the property
The above language would hold liable a person who intended to do a certain thing, e.g., cross
upon a certain land, even if that person did not know that the land was owned by someone else.
The question unanswered in North Carolina case law is whether an intentional act that affects
another landowner’s property by causing transfer of debris to that property constitutes trespass.
Our sister state appears to have answered that question in the affirmative. In Akers v. Mathieson
Alkali Works, 151 Va. 1, 144 S.E. 492 (1928), the plaintiff sued under theories of continuing
trespass and nuisance for leakage of chemical “muck” from the defendant’s storage basin.
Defendant argued that the right of recovery was predicated upon a finding of negligence by
defendant. The court rejected that argument, stating:
The law requires that every person so use his own property as not to injure the
property of another …. When defendant permitted the muck to escape from its
land and injure land of the plaintiff, without his fault, defendant was liable for the
damages sustained by the plaintiff. The loss in such cases must be borne by
plaintiff or defendant and it seems just that it fall upon the defendant by whose
conduct it was made possible.
Id.; accord Cooper v. Horn, 248 Va. 417 at 423-24, 448 S.E.2d 403 at 407 (1994) (“Although
proof of a negligent act may be sufficient to support a civil action for trespass, such proof is not a
necessary element of that cause of action.”). See also Brooks v. Ready Mix Concrete Company,
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94 Ga. 791, 96 S.E.2d 213 (Ga. Ct. App. 1956) (“[R]eason and common sense and justice require
that the one who sets in motion an agency which directly damages another's property, especially
an agency of such a dangerous nature, should suffer rather than an innocent property owner who
has done nothing.”).
Trespass to Chattels
When personal property is carried away, such as by wind or flood, and comes to rest on the land
of another, the property still remains the property of the original owner. The original owner will
want to retrieve the property, but doing so can be problematic. To simply entering another’s land
to retrieve property without the landowner’s permission might be viewed as a trespass to real
property under certain circumstances. Even if a person causes no actual damage in entering the
land of another, the landowner may still be entitled to sue for recovery of nominal damages.
Matthews v. Forrest, 235 N.C. 281 69 S.E.2d 553, (1952). On the other hand, if the landowner
unreasonably refuses entry onto the land to retrieve the property, the landowner may be liable for
trespass to chattels. Trespass to chattels is the intentional, unauthorized dispossession of or
intermeddling with another’s personal property. Fordham v. Eason, 351 N.C. 151, 521 S.E.2d
701, (1999); McDowell v. Davis, 33 N.C. App. 529, 235 S.E.2d 896, rev. den. 293 N.C. App.
360, 237 S.E.2d 48 (1977). A landowner’s refusal to either allow entry upon the land to retrieve
the item or refusal to deliver the item upon request can constitute an intentional dispossession of
or intermeddling with that chattel. Ideally, then, permission should be sought to retrieve
property that has been carried away. If the landowner is not home or is otherwise not available,
care should be taken not to damage any part of the landowner’s land in retrieving the property so
as to avoid any claim by the landowner for actual damages arising from trespass to real property.
Nonetheless, the landowner may still have a claim for nominal damages.
3.
Act of God Defense
As held in Safeguard Ins. Co. v. Wilmington Cold Storage Co., 149 S.E.2d 27 (NC Ct. App.
1966), the landowner will be liable if the landowner’s negligence acted in concurrence with an
act of God:
“[One may be held liable for his own negligence even through it concurs with an
act of God.” To the same effect, Southern Ry. Co. v. Cohen Weenen & Co., 156
Va. 313, 157 S.E. 563. Reducing the principle to the terseness of a maxim, “He
whose negligence joins with the act of God in producing injury is liable therefor.”
Kindell v. Franklin Sugar Refining Co., 286 Pa. 359, 133 A. 566.
Safeguard Ins., 149 S.E.2d 27 (N.C. Ct. App. 1966). However, the landowner will not be liable
for damages if the damages would have occurred from an act of God regardless of that
negligence.
This is said in 1 AM. JUR. 2d, Act of God, § 11: “All the authorities without
exception agree that a person is not liable for injuries or damages caused by an act
which falls within the meaning of the term ‘act of God,’ where there is no fault or
negligence on his part. Even where the law imposes liability irrespective of
73
negligence, liability will not be imposed where the injury or damage is solely the
result of an act of God.”
The issue was further developed in Lea Co. v. North Carolina Board of Transp., 308 N.C.
603,304 S.E.2d 164 (N.C. 1983), wherein the plaintiff instituted an action against the Board of
Transportation for flooding on or across the plaintiff's property which flowed from an easement
taken by the Board. This flooding was a result of a 100-year flood (i.e., a flood that is
statistically predicted to occur once in every 100 years). Nonetheless, the North Carolina
Supreme Court upheld the trial court determination that this flood was a reasonably foreseeable
event. Id. at 175. That court adopted the definition for an Act of God set forth in Black's Law
Dictionary, 31 (Revised 5th Edition 1979) as follows:
An Act occasioned exclusively by violence of nature without the interference of
any human agency. It means a natural necessity proceeding from physical causes
alone without the intervention of man. It is an act, event, happening or
occurrence, due to natural causes an inevitable accident, or disaster; a natural and
inevitable necessity which implies entire exclusion of all human agency which
operates without interference or aid from man and which results from natural
causes and is in no sense attributable to human agency.
Lea, 304 S.E.2d at 172 (emphasis added). See also Jenkins v. Helgren, 217 S.E.2d 120 (N.C. Ct.
App.1975) (even if source of spark was an act of God, for which installers of insulation in return
duct connected to furnace could not be responsible, installers could be held liable to homeowners
for damage caused by fire if their negligence created the hazardous condition upon which the act
operated); Bennett v. Southern Railroad Co., 96 S.E.2d 31 (N.C. Ct. App. 1957) (even when an
act of God combines or concurs with the negligence of the defendant to produce the injury or
when any other efficient cause so combines or concurs; the defendant is liable if the injury would
not have resulted but for his/her own negligent act or omission.); Lawrence v. Power Co., 190 N.
C. 664, 130 S.E. 735 (1935) (defendant power company, who allowed dry grass to accumulate
on its right-of-way under plaintiff’s tower, found liable for fire damage to plaintiff's tower after
lightning struck defendant's transmission line causing an insulator on the tower to melt and fall
upon the combustible grass below); Lawrence v. Yadkin River Power Co., 190 N.C. 664, 130
S.E. 735 (1925); Supervisor & Commissioner of Pickens Co. v. Jennings, 181 N.C. 393, 107 S.E.
312 (1921); Ridge v. Norfolk Southern R.R. Co., 167 N.C. 510, 83 S.E. 762 (1914).
4.
Governmental Liability
Any actions against the state or a state agency or state employee must be submitted to the
Industrial Commission by affidavit, N.C.G.S.§143-297 (must list various things), within three (3)
years of accrual of the claim, N.C.G.S. §143-299. The limit of liability is $150,000. N.C.G.S.
§143-291. There appear to be no notice limitations for claims against municipalities.
Whether a governmental body will be held liable in tort for negligence depends upon the nature
of the acts or omissions constituting negligence. There are two categories of governmental
functions: “governmental” and “proprietary.” Sides v. Hospital, 287 N.C. 14, 213 S.E. 2d 297
(1975); Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897 (1972), pet. for reh.
74
denied, 281 N.C. 516 (1972); and Casey v. Wake County, 45 N.C. App. 522, 263 S.E. 2d 360
(1980), pet. for discr. rev. denied, 300 N.C. 371, 267 S.E. 2d 673 (1980). A municipality would
enjoy sovereign immunity for “governmental” functions, but not for “proprietary” ones.
A good definition of the distinction between governmental and proprietary functions is the
following:
Any activity of the municipality which is discretionary, political, legislative, or
public in nature and performed for the public good in behalf of the State rather
than for itself, comes within the class of governmental functions. When, however,
the activity is commercial or chiefly for the private advantage of the compact
community, it is private or proprietary.
See generally Kizer v. City of Raleigh, 121 N.C. App. 526, 466 S.E.2d 336 (1996).
Case law in North Carolina has helped clarify what functions are governmental and what are
proprietary, as follows:
1)
Municipal fire departments are generally immune from governmental or
discretionary functions, which include the decisions they make in fighting fires, but that
immunity is waived to the extent of any insurance limits for that entity, under N.C. Gen. Stat. §§
153A-435 and 160A-485; see, e.g., Willis v. Town of Beaufort, 544 S.E.2d 600 (N.C.Ct.App.
2001). The waiver of immunity must be specifically pleaded in the complaint. Clarke v. Burke
County, 117 N.C. 85, 450 S.E.2d 747 (NC Ct. App. 1994).
2)
Volunteer fire departments are immune from civil liability for their conduct “at
the scene” and “in connection with” their fire suppression efforts. N.C.G.S. §58-82-5(b) (1999);
see Spruill v. Lake Phelps Volunteer Fire Department, Inc., 351 N.C. 318, 523 S.E.2d 672 (N.C.
2000). Spruill reversed the North Carolina Court of Appeals opinion in Spruill v. Lake Phelps
Volunteer Fire Department, Inc., 132 N.C.App. 104, 510 S.E.2d 405 (N.C.Ct.App. 1999) that
had interpreted N.C.G.S. §58-82-5(b) (1999) - which protects volunteer fire departments and
volunteer firefighters for firefighting activities - as only granting immunity if the activities
occurred “at the scene” of a fire. The North Carolina Court interpreted N.C.G.S. §58-82-5(b)
(1999) as protecting both a fire department and a fireman not only from activities “at the scene”
but also from conduct “in connection with” a fire regardless of the distance from the scene -- in
this case, one-half mile.
3)
Sewage maintenance is generally considered proprietary in nature, thus conferring
liability to municipalities for failure to maintain sewage systems, including storm drains. Howell
v. City of Lumberton, 548 S.E.2d 835 (N.C. Ct. App. 2001) (“The general rule is that a
municipality becomes responsible for maintenance, and liable for injuries resulting from a want
of due care in respect to upkeep, of drains and culverts constructed by third persons when, and
only when, they are adopted as a part of its drainage system, or the municipality assumes control
and management thereof,” quoting Hotels, Inc. v. Raleigh, 268 N.C. 535, 151 S.E.2d 35 (1966));
Pulliam v. City of Greensboro, 103 N.C. App. 748, 754, 407 S.E.2d 567, 567 (1991)
(municipality “not immune from tort liability in the operation of its sewer system.”). However,
75
if some other entity besides the municipality assumed control over the sewage system, the
municipality may not be liable. See, e.g., Milner Hotels, Inc. v. City of Raleigh, 268 N.C. 535,
151 S.E.2d 35 (1966), modified on reh’g, 271 N.C. 224, 155 S.E.2d 543 (1967) (a municipality is
responsible for negligent maintenance of drains constructed by third persons only if it adopted
them as part of its drainage system or assumed control and management thereof). See also Kizer
v. City of Raleigh, 466 S.E.2d 336 (N.C.App. 1996) (no governmental immunity for negligent
maintenance of storm drains and pipes); Pulliam v. City of Greensboro, 407 S.E.2d 567
(N.C.App. 1991) (no immunity for operation of sanitary sewer system); Ward v. City of
Charlotte, 269 S.E.2d 663 (N.C.App. 1980) (no immunity for injuries resulting from lack of due
care in upkeep of sewage system, but liability may arise only where a municipality has actual or
constructive notice of the existence of an obstruction or defect and fails to act); Mitchell v. City
of High Point, 228 S.E.2d 634 (N.C.App. 1976) (city not liable for damages from flow of
overloaded stream beneath city street after annexing the area containing a natural stream bed,
where stream bed was privately owned, city merely owned right-of-way across stream bed and
maintained culverts for passage of stream beneath city street, and city had not augmented flow of
water to point of overloading stream or causing overflow); Dize Awning & Tent Co. v. City of
Winston-Salem, 224 S.E.2d 257 (N.C.App. 1976) (city not liable for increased flow from
watershed merely because city selected design choice for construction of replacement culvert
which exposed inadequacy of plaintiff's private drain system for coping with increased flow from
watershed); Moser v. City of Burlington, 78 S.E. 74 (N.C. 1913) (city which chooses to construct
a sewerage system must exercise the power in such a way as not to create a private nuisance);
Barger v. City of Hickory, 41 S.E. 708 (N.C. 1902) (city not liable for sewer nuisance where the
only evidence against the city is that some of its employees, years before, acting under direction
of the board of aldermen, put in the sewer, and where the damage claimed arises solely from the
present use of the sewer by a private person).
4)
As to debris and/or traffic on state highways, the North Carolina State Highway
Commission is immune from suit, except insofar as the right to sue is conferred by the Tort
Claims Act. Ayscue v. Highway Comm’n, 270 N.C. 100, 102 (1967). As the Act has been
interpreted, the Highway Commission is not liable for negligent omissions or failures to act. Id.
at 103. Therefore, the owner of a car damaged by a tree that fell in the roadway cannot maintain
an action against the highway commission for failure to maintain the tree. Moreover, a plaintiff
probably cannot maintain an action for negligent failure to maintain manmade objects such as
telephone poles. See id. (plaintiff could not maintain an action against the Commission based on
the Commission’s negligent failure to removal gravel from a paved intersection, where the gravel
had been strewn by cars from a nearby gravel road).
In Wilkerson v. Norfolk Southern Ry. Co., 566 S.E.2d 104 (N.C.App. 2002), the court held that
the city was entitled to governmental immunity from a wrongful death claim by a motorist who
collided with a train because the city was carrying out a governmental function with respect to a
railroad crossing improvement project. The city had not waived its immunity because it had not
purchased a liability insurance policy for this project or anything related to this project. As
stated in Wilkerson:
When municipalities lose immunity, it is because they have failed to maintain
their own streets and sidewalks in a safe condition. See Eakes v. City of Durham,
76
125 N.C.App. 551, 481 S.E.2d 402 (1997); McDonald’s Village of Pinehurst, 91
N.C.App. 633, 372 S.E.2d 733 (1988); and Millar [v. Town of Wilson,] 222 N.C.
340, 23 S.E.2d 42 [1942].
The Millar case involved a hole in the road over which a driver drove a truck, resulting in serious
injuries. In allowing plaintiff to proceed against the city, the court stated, "While the municipal
authorities have discretion in selecting the means by which the traveling public is to be protected
against a dangerous defect in the street, provided the means selected are adequate, there is no
discretion as to the performance or nonperformance of the duty itself." 23 S.E.2d at 44.
5)
Municipalities and agents are given added layer of immunity for the failure to
furnish police protection to specific individuals under Braswell v. Braswell, 330 N.C. 363, 410
S.E.2d 897 (1991), but this case appears to apply only to governmental police protection, not
governmental fire protection services. Lovelace v. City of Shelby, 351 N.C. 458, 526 S.E.2d 652
(N.C. 2000). The North Carolina Supreme Court reversed the North Carolina Court of Appeals
decision in Lovelace v. City of Shelby, 133 N.C.App. 408, 515 S.E.2d 722 (N.C.Ct.App. 1999),
which had applied the Braswell “public duty doctrine” to protect the city from a claim that the
city owed a “special duty” to a tenant or to tenant’s daughter, the daughter having died in a house
fire allegedly from a six-minute delay by a the city’s 911 system operator in notifying the fire
department of fire. The North Carolina Supreme Court held that the public duty doctrine only
applied to governmental police protection, not governmental fire protection services, beginning
its analysis as follows:
As early as this Court’s decision in Hill v. Olderman of Charlotte, 72 N.C. 55
(1875), the state and its agencies have been immune from tort liability under the
common law doctrine of sovereign immunity. Sovereign immunity continues to
be a viable protection against tort claims for local governments. It is subject,
however, to certain legislatively created exceptions allowing local governments to
purchase liability insurance to protect the public, See N.C.G.S. §§153a-435
(1999) (applying to counties), 160a-485 (1999) (applying to cities) and courtmade exceptions for public officials involved in conduct that is either corrupt,
malicious, or outside of and beyond the scope of their official authority, See
Meyer v. Walls, 347 N.C. 97, 112, 489 S.E.2d 880, 888 (1997).
The court then noted that further protection is given to a municipality under the public duty
doctrine, which protects a municipality and its agents from liability for the failure to furnish
police protection to specific individuals. However, the court stated that the public duty doctrine
announced in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897 (1991) was “specifically
limited to the facts in that case and to the issue of whether sheriff negligently failed to protect a
decedent.” The court concluded as follows:
While this court has extended the public duty doctrine to state agencies required
by statute to conduct inspections for the public’s general protection, See Hunt v.
N.C. Department of Labor, 348 N.C. 192, 499 S.E.2d 747 (1998); Stone v. N.C.
Department of Labor, 347 N.C. 473, 495 S.E.2d 711, certiorari denied, 525 U.S.
1016, 119 S.Ct. 540, 142 L.E.d 2d 449 (1998), we have never expanded the public
77
duty doctrine to any local government agencies other than law enforcement
departments when they are exercising their general duty to protect the public, See
Isenhour v. Hutto, 350 N.C. 601, 517 S.E.2d 121 (1999) (refusing to extend the
public doctrine to shield a city from liability for the allegedly negligent acts of a
school crossing guard). We declined to expand the public duty doctrine in this
case. Thus, the public duty doctrine, as it applies to local government, is limited
to the facts of Braswell. Because we decline to expand the public duty doctrine as
it applies to local governments, we reverse the decision of the court of appeals
and remand to the court for reinstatement of the trial court’s order denying
defendant’s Rule 12(b)(6) Motion to Dismiss.
In Willis v. Town of Beaufort, 544 S.E.2d 600 (N.C.Ct.App. 2001), the court of appeals reversed
summary judgment granted in favor of city and fire chief in a negligence claim brought by
shrimp vessel owner against city and fire chief after fire destroyed interior of vessel, holding
that: (1) public duty doctrine, as set forth in Braswell v. Braswell, 330 N.C. 363, 410 S.E.2d 897
(1991) was not available as defense for city; (2) city waived governmental immunity to extent it
had insurance coverage; (3) public duty doctrine was not available as defense for fire chief; (4)
fire chief was public official, rather than public employee, and was not subject to individual
liability for negligence; and (5) fire chief’s immunity was waived by city’s purchase of liability
insurance. The facts were as follows: Plaintiff was attempting to repair the fuel tanks on board
his shrimping vessel which was docked in Beaufort, North Carolina, when sparks from a welding
machine ignited a fire aboard the vessel, and Plaintiff unsuccessfully attempted to extinguish the
fire. He then called 911, which notified the Beaufort Fire Department, which arrived within four
minutes of first being contacted, and ordered the vessel owner off the vessel, as he was
attempting to extinguish the fire himself. The vessel owner then requested assistance from
several additional fire departments, and those additional departments shortly thereafter arrived on
the scene. Beaufort Fire Department assumed jurisdiction, and attempted to use water to
extinguish the fire, but after a period of time, the fire chief ordered all fire-fighting efforts to
cease. Plaintiff sued the fire chief for “gross negligence” as well as simple negligence. The
Court held that the Public Duty Doctrine does not extend to protect the municipal provision of
fire protection services, in view of Lovelace v. City of Shelby. The Court went on to discuss
whether the fire chief was protected under the Sovereign Immunity Doctrine. The court noted
that “the organization and operation of a fire department is a governmental function,” and that
under the doctrine of Governmental Immunity, a municipality is not liable for the torts of its
officers and employees if the torts are committed while they are performing a governmental
function. However, any city may waive its immunity from civil tort liability by purchasing
liability insurance, under N.C. Gen. Stat. §160A-485. Accordingly, the fire department and the
fire chief, in his capacity as an officer of the fire department, was subject to liability only to the
extent of the insurance.
The Court went on to discuss the issue of whether the fire chief was merely a public
employee as opposed to a public official, the distinction being that a public employee can be
sued for mere negligence whereas a public official cannot. They found him to be a public
official entitled to protection from mere negligence, in the performance of their governmental or
discretionary duties. Although the fire chief was found to be a public official conducting a
governmental or discretionary function, he stood in the shoes of the department itself and was
not immune to the extent of liability insurance.
78
6)
“Special Duty” Cases:
Vanasek v. Duke Power Company, 132 N.C.App. 335, 511 S.E.2d 41 (N.C.Ct.App. 1999): City
did not owe special duty to worker, who claimed negligence in failing to provide warnings or
barriers around a downed power line that electrocuted a worker, and the City was thus immune
from liability under the Public Duty Doctrine. The case states, “[T]he Public Duty Doctrine
provides that a municipality ordinarily acts for the benefit of the general public when exercising
its police powers, and therefore cannot be held liable for negligence or gross negligence in
performing or failing to perform its duties.” The Court goes on to note, “if a negligence claim
survives application of the Public Duty Doctrine, the municipality may nonetheless be insulated
from liability by virtue of governmental immunity. See Stafford v. Barker, 129 N.C.App. 576,
584, 502 S.E.2d 1, 5 (holding that a municipality’s waiver of governmental immunity does not
affect the Public Duty Doctrine inquiry), discretionary review denied, 348 N.C. 695, 511 S.E.2d
650 (1998).” The Court noted that a special duty exists “where the municipality promises
protection to an individual, the protection is not forthcoming, and the individual’s reliance on the
promise of protection is causally related to the injury suffered.”
Davis v. Messer, 119 N.C.App. 44, 457 S.E.2d 902, discretionary review denied, 341 N.C. 647,
462 S.E.2d 508 (1995): Allegations of a “special duty” were found to be sufficient in a case
where a firefighter informed a dispatcher that his fire department would respond, even though
the burning home was near the border with an adjacent fire district, but then his fire department
turned around when they were within a mile of the house, returning to their station when they
observed that the burning home was across the district line. The homeowner alleged that he had
relied on that direct promise of protection and thus had not called other fire departments. The
court held that the plaintiff’s allegations satisfied the substantive elements of the exception to the
public duty doctrine.
North Dakota
1.
Landowner’s Duty to Inspect/Prepare
Rozell v. Northern Pac. Ry. Co., 167 N.W. 489 (N.D. 1917): Where owner of real estate has
exercised ordinary care in use of his property, he is not liable for damages incidentally resulting
to a traveler on abutting highway.
2.
Act of God Defense
Huber v. Oliver County, 602 N.W.2d 710 (N.D. 1999): To prevail on the act-of-God defense, the
defendant must establish the act of God was the sole proximate cause of the damage, and if the
act of God and the fault or negligence of the defendant combine to produce the injury, the
defendant is still liable.
North Shore, Inc. v. Wakefield, 542 N.W.2d 725 (N.D. 1996): If act of God and negligence of
defendant combine to produce the injury, the defendant is still liable.
79
Lang v. Wonnenberg, 455 N.W.2d 832 (N.D. 1990): If an act of God and the negligence of the
defendant combine to produce the injury, the defendant is liable.
3.
Governmental Liability
Kinnischtzke v. City of Glen Ullin, 57 N.W.2d 588, (N.D.,1953): The Legislature, by endowing
municipalities with authority to establish and maintain sewer systems, and, when necessary, to
conduct sewage beyond the municipal limits, did not sanction acts of a municipality resulting in
private damage where that damage is not the inherent result of the exercise of the statutory
authority, but results from the manner in which the authority is exercised. Const. §§ 130, 166173; NDRC 1943, 40.2202, 40.2203.
Ohio
1.
Landowner’s Duty to Inspect/Prepare
Nationwide Ins. Co. v. Jordan, 639 N.E.2d 536 (Ohio. Mun. 1994): Maintenance of tree on
owner's property was not "absolute nuisance," and thus adjoining landowner, who allegedly
suffered damage as result of tree falling, could not proceed merely upon strict liability against
owner, but, instead, was required to prove negligence.
Heckert v. Patrick, 473 N.E.2d 1204 (Ohio 1984): Although there is no duty imposed upon the
owner of property abutting a rural highway to inspect growing trees adjacent thereto or to
ascertain defects which may result in injury to a traveler on the highway, an owner having
knowledge, actual or constructive, of a patently defective condition of a tree which may result in
injury to a traveler must exercise reasonable care to prevent harm to a person lawfully using the
highway from the falling of such tree or its branches.
Barber v. Krieg, 178 N.E.2d 170 (Ohio 1961): Apart from specific statutes, law imposes upon
every person duty of using his own properties so as not to injure his neighbors; as conditions
change and modes of life alter, duty of observing ordinary care in use of property while not
altering in its essentials, will alter in its details.
Hay v. Norwalk Lodge No. 730, B.P.O.E., 109 N.E.2d 481 (Ohio.App.6.Dist.Huron.Co. 1951):
An owner of property abutting a highway has the obligation to use reasonable care to keep his
premises in such condition as not to endanger travelers in their lawful use of the highway. No
duty is imposed upon the owner of property abutting a rural highway to inspect growing trees
adjacent thereto to ascertain defects which may result in injury to a traveler on the highway, but
an owner having knowledge, actual or constructive, of a patently defective condition of a tree
which may result in injury to a traveler must exercise reasonable care to prevent harm to a person
lawfully using the highway from the falling of such tree or its branches.
Stern v. City of Cleveland, 14 Ohio Law Abs. 291 (Ohio.App.8.Dist.Cuyahoga. 1933): Where
injured person was at time of injury in a public place or on premises of a person other than the
person sought to be charged, rule of nonliability for injury to licensees is not available.
80
Defiance Water Co. v. Olinger, 44 N.E. 238 (Ohio 1896): A guest, by the express or implied
invitation of a tenant of premises adjoining land on which water is stored in dangerous quantities,
may recover of the adjoining owner for injuries received while on the tenant's premises, because
of the escape of the water through the owner's failure to use reasonable care to restrain it.
2.
Act of God Defense
Helton v. Scioto City Bd. Of Commrs., 703 N.E.2d 841 (Ohio.App.4.Dist.Scioto.Co. 1997): For
an event to be an "act of God," it must not be foreseeable by the exercise of reasonable foresight
and prudence. Usually a defendant cannot be held liable for injuries caused by an act of God, but
if proper care and diligence would have avoided the act, it is not excusable as an act of God.
Nationwide Ins. Co. v. Jordan, 639 N.E.2d 536 (Ohio.Mun. 1994): Where two causes contribute
to an injury, one cause of which is defendant's negligence and the other cause of which arises out
of actions for which defendant is not responsible, such as an "act of God," defendant is
nonetheless liable if damage would not have occurred but for his negligence.
Bier v. City of New Philadelphia, 464 N.E.2d 147 (Ohio 1984): If proper care and diligence on
part of defendant would have avoided act, it is not excusable as act of God.
3.
Governmental Liability
Martin V. Ohio Dept. of Transportation, 2003 – Ohio 5558 (Ohio.Ct.Cl. 2003): Motorist, who
brought negligence action against state Department of Transportation (DOT) following incident
in which her vehicle drove over culvert installation site, failed to demonstrate that DOT was
negligent, where motorist failed to provide sufficient evidence to prove that DOT maintained a
hazardous condition on the roadway which was the substantial or sole cause of motorist's
property damage, motorist failed to prove that construction activity created a nuisance, and there
was no conclusive evidence to prove a negligent act or omission on part of DOT caused damage
to car.
Bull v. Ohio Dept. of Transp., 2003 – Ohio - 2611 (Ohio.Ct.Cl.,2003): Department of
Transportation is not an insurer of its highways.
Harrison v. Ohio Department of Transp., 2003 – Ohio- 2432 (Ohio.Ct.Cl.,2003): To recover on
negligence claim against Department of Transportation for failure to maintain roadways, plaintiff
must prove either: (1) defendant had actual or constructive notice of defect and failed to respond
in reasonable time or responded in negligent manner, or (2) that Department, in general sense,
maintains its highways negligently.
Morgan v. Ohio Dept. of Transp., 2003 – Ohio- 1927 (Ohio.Ct.Cl. 2003): Motorist failed to
present sufficient evidence to establish that damage to her van's running board was caused by
any negligent act or omission on the part of contractors of Department of Transportation (DOT);
although DOT was required to exercise due diligence in the maintenance and repair of highways,
motorist failed to produce evidence furnishing a reasonable basis for sustaining her claim.
81
Hellmann, 2003 –Ohio- 1925 (Ohio.Ct.Cl. 2003): Motorist was not entitled to recover from
Department of Transportation for damage to vehicle when motorist's vehicle struck pothole on
interstate highway, where motorist failed to provide evidence that Department had constructive
notice of pothole, and failed to provide evidence that Department negligently maintained
roadway.
Shannon v. Johnson & Hughes Excavating Co., Inc., 2002 –Ohio - 7350
(Ohio.App.10.Dist.Franklin 2002): Political subdivision immunity exception for failure to keep
public roads free from nuisance was not applicable, and thus, city was immune from liability
under Political Subdivision Tort Liability Act in connection with negligence action brought
against city by minor bicyclist who was injured when he rode into expansion joint and fell into
the joint, thereby throwing him over the handlebar; bicyclist was not local traffic and had chosen
to disobey the posted restriction because he did not want to take the extra time to ride his usual
route, and just prior to riding into the expansion joint, bicyclist rode his bicycle through wet
concrete that had been poured to form the joint. R.C. 2744.02(B)(3).
Justus v. Ohio Dept. of Transp., 776 N.E.2d 131 (Ohio.Ct.Cl. 2002): State Department of
Transportation (DOT) was not negligent in failing to ensure that railroad crossing was reopened
in a timely manner, and thus DOT's alleged negligence did not cause decedent's death in accident
at detour; DOT's employees repeatedly urged railroad to accelerate the pace of construction, and
decedent's administrator failed to prove that DOT had any authority either to take over
construction on the crossing or to compel railroad to complete the project within the agreed time
limit.
Workman v. Ohio Dept. of Transp., 2002 –Ohio- 4640 (Ohio.Ct.Cl. 2002): Motorist failed to
produce any evidence to infer that Department of Transportation (DOT), in a general sense,
maintained its highways negligently or that DOT's acts caused defective condition on interstate,
thereby precluding DOT from being liable to motorist for cost of replacing cracked windshield
caused by flying rock on interstate.
Cadman v. Ohio Dept. of Transp., 2002 –Ohio- 4633 (Ohio.Ct.Cl. 2002): Department of
Transportation was not liable to motorist for cost of his automotive repair, absent showing that
Department had actual or constructive notice of pothole and either failed to respond in a
reasonable time or responded in a negligent manner, or that Department negligently maintained
roadway.
Haynes v. Franklin, 767 N.E.2d 1146 (Ohio 2002): An edge drop on the berm of a county or city
road is not, in and of itself, a "nuisance" within the meaning of the Political Subdivision Tort
Liability Act making political subdivisions liable for failure to keep public roads, highways, and
streets in repair, and free from nuisance. (Per the Chief Justice with two justices concurring and
one justice concurring in the judgment). R.C. § 2744.02(B)(3). Circumstances may exist in
which a defect in the berm arising after the design and completion of construction of a roadway,
including a defect creating an edge drop between the pavement and the adjoining berm, is a
"nuisance" as used in the Political Subdivision Tort Liability Act making political subdivisions
liable for failure to keep public roads, highways, and streets in repair, and free from nuisance.
(Per the Chief Justice with two justices concurring and one justice concurring in the judgment).
82
R.C. § 2744.02(B)(3). A condition in the right-of-way of a road is a "nuisance" within the
meaning of the Political Subdivision Tort Liability Act making political subdivisions liable for
failure to keep public roads, highways, and streets in repair, and free from nuisance, if the
condition creates a danger for ordinary traffic on the regularly traveled portion of the road and
the cause of the condition was not a decision regarding design and construction. (Per the Chief
Justice with two justices concurring and one justice concurring in the judgment). R.C. §
2744.02(B)(3).
Walters v. City of Eaton, 2001 WL 449552, (Ohio.App.12.Dist.Preble.C 2002): When
determining a political subdivision's duty to keep its roadways free from nuisance, the focus is
on whether a condition exists within the township's control that creates a danger for ordinary
traffic on the regularly traveled portion of the road. R.C. § 2744.02(B)(3)
Bibbs v. Cinergy Corp., 2002 WL 537628 (Ohio.App.1.Dist.Hamilton. 2002): Metropolitan
sewer district was a "political subdivision," within meaning of political subdivision tort liability
statutes. R.C. § 2744.01(F).
Alden v. Summit Cty., 679 N.E.2d 36 (Ohio App. 9 Dist. 1996): Failure of statute which
provides for liability of political subdivisions where subdivision fails to keep certain types of
property free from nuisance to include sewer system as posing potential liability prevents
plaintiff who seeks to recover based on nuisance allegedly created by sewer from relying on
statute. R.C. § 2744.02(B)(3).
Masley v. City of Lorain, 358 N.E.2d 596 (Ohio 1976): Municipality is liable for trespass in
casting waters upon land of another by seepage and percolation, and it is liable in construction
and maintenance of hydraulic or similar work if it fails to use ordinary skill and foresight to
prevent injury to others in times of flood which can be reasonably anticipated.
Waugh v. Village of Marble Cliff, 26 Ohio Dec. 477 (Ohio.Com.Pl. 1916): A municipality in
establishing and maintaining a purification plant for sewage disposal into a river under statute,
acts purely as a governmental agency, and is immune from liability for personal injuries to third
person due to the municipality's negligence. Where due to negligent construction and
maintenance of a sewage disposal plant required by statute, sewage percolated through the soil
and entered a well, causing typhoid fever, the municipality was not liable to owner of well, since
it was acting in its governmental capacity.
McWilliams & Schulte v. City of Cincinnati, 7 Ohio Law Rep. 88 (Ohio Super. 1909): A city
was not liable for damage caused by extraordinary flood when river back water settled in low
ground causing a sewer to collapse where landowners did not allege any faulty construction of
the sewer or failure to keep it in proper repair.
City of Norwalk v. Blatz, 19 Ohio C.D. 306 (Ohio Cir. 1906): Recovery from a city cannot be
had by a landowner for damage caused by flooding plaintiff's land with water from sewers
constructed by the city, when such right has been enjoyed by the city for the prescriptive period,
and such damages are the natural consequences of the exercise of such right by the city.
83
City of Cincinnati v. Frey, 16 Ohio Dec. 77 (Ohio Super. 1905): The mere fact that city sewer in
addition to its being inadequate to carry off the refuse and silt, which refuse and silt under certain
conditions backed on property of plaintiff, was also insufficient to carry off the surface water in
case of heavy rains did not render defendant city's liability any less.
Oklahoma
1.
Landowner’s Duty to Inspect/Prepare
Boudreaux v. Sonic Industries, Inc., 729 P.2d 514 (Okla.Civ.App.Div.3 1986): Landowner has
duty to exercise right to erect a sign with due regard to right of public to use roadway. Property
owner owes duty to maintain property in such manner that, when it is put to its normal business
use, property does not create unreasonable hazard to travelers on abutting roadway.
Haas v. Firestone Tire & Rubber Co., 563 P.2d 620 (Okla. 1976): Property owner owes a duty to
maintain his property in such a manner that when it is put to its normal business use it does not
result in the creation of an unreasonable hazard to travelers on abutting roadway.
2.
Act of God Defense
Studebaker v. Cohen, 747 P.2d 274 (Okla. 1987): "Act of God" is some inevitable accident that
could not have been prevented by human care, skill, and foresight, but which results exclusively
from nature's cause, such as lightning, tempest and flood, and which is the sole cause of injury;
"Act of God" is a narrower term than "avoidable accident" and does not encompass physical
inflictions or medical problems.
3.
Governmental Liability
City of Ada v. Canoy, 177 P.2d 89 (Okla. 1947): Municipality may be guilty of maintaining and
operating its sewer system in such a manner as to constitute a nuisance. A municipality is not an
insurer of its sewer system, but if, after such sewers and drains are constructed, it becomes
evident that they as constructed are inadequate to perform functions contemplated, and after due
notice thereof municipality fails to take steps necessary to remedy such condition and continues
thereafter to operate them in such a manner as to constitute a nuisance, it will be held liable.
Oregon
1.
Landowner’s Duty to Inspect/Prepare
Hall By and Through George v. Dotter, 879 P.2d 236 (Or.App. 1994): Landowner may be liable
for harm to protected interests outside land, caused by negligence on land. Restatement (Second)
of Torts § 364.
Hummell v. Seventh St. Terrace Co., 26 P. 277 (Or. 1891): A party in the exercise of a right
upon his own land which involves danger to the property of his neighbor is bound to provide
against such danger by all reasonable prudence and care.
84
McLane v. Northwest Natural Gas Co., 467 P.2d 635 (Or. 1970): Presence of injured party on or
off a defendant's premises, without more, is irrelevant to any basis for the application of absolute
liability.
2.
Act of God Defense
3.
Governmental Liability
Pennsylvania
1.
Landowner’s Duty
Okkerse v. Howe, 593 A.2d 431 (Pa.Super. 1991): A neighboring landowner does not have a
duty to correct a defective artificial condition on his neighbor's property.
Oswald v. Hausman, 47 Pa. D. & C.3d 498 (Pa.Com.Pl. 1987): Since plaintiff's decedent was a
trespasser, the duty owed was that owed to a trespasser even though the land involved was a
roadway; section 367 of the Restatement (Second) of Torts concerning dangerous conditions on
a road appearing to be a highway is not adopted.
Barker v. Brown, 236 Pa.Super 75, 340 A.2d 566 (1975). Imposing duty upon a landowner in an
urban or residential setting to inspect the property for defects in trees and other naturally
occurring objects.
Westerman v. Stout, 25 Bucks 303 (Pa.Com.Pl. 1974): An owner or possessor of land adjacent
to, or in close proximity to a public highway must exercise reasonable care to avoid injury to the
travelling public arising from unnecessarily dangerous conditions created by him on the land
where the consequences of his failure to exercise such care are reasonably foreseeable.
Frangis v. Duquesna Light Co., 122 Pitts.L.J. 197 (Pa.Com.Pl. 1974): Possessors of land near a
highway have a duty not to create or permit an artificial condition to exist which can reasonably
be foreseen to involve an unreasonable risk to others accidentally brought in contact with such
condition.
Beury v. Hicks, 21 Chest. 209 (Pa.Com.Pl. 1973): One in possession of land adjacent or in close
proximity to a public highway must exercise reasonable care to avoid injury to the traveling
public from unnecessarily dangerous conditions created by him on the land.
Volpe v. Nobel, 29 Fay.L.J. 3 (Pa.Com.Pl. 1965): A business operation adjacent to a public
highway must be so operated as to avoid, by use of reasonable care, the creation of a hazardous
condition on the public highway, and liability for injury and damage to users of the highway will
result to one whose failure to observe this duty was the proximate cause of the injury and
damage.
85
Haldeman v. Mercer, 30 Pa. D. & C.2d 435 (Pa.Com.Pl. 1963): Neither a possessor of land, nor
a lessor, vendor or other transferor thereof, is subject to liability for bodily harm caused to others
outside the land by a natural condition of the land other than trees growing near a highway,
restatement, torts, section 363. A possessor of land is subject to liability for bodily harm caused
to others outside the land by a structure or other artificial condition thereon, which the possessor
realizes or should realize as involving an unreasonable risk of such harm if the condition is
created by a third person without the possessor's consent or acquiescence but reasonable care is
not taken to make the condition safe after the possessor knows or should know of it, restatement,
torts, section 364. An "artificial condition" has to do with a changing of the natural condition of
the land itself and the growth of foliage around a stop sign is not a change but rather the failure
to alter that which nature created. A "structure" upon land, the negligent maintenance of which
will impose liability upon its possessor in favor of those outside of it, consists of an erection
which is or may be employed in the utilization of the land itself; and a stop sign, which is not so
used nor so intended to be, is not such a structure.
Ressler v. Gerlach, 56 Lanc.L.R. 263 (Pa.Com.Pl. 1959): Every man has the right to the natural
use and enjoyment of his own property; and if, while lawfully in such use and enjoyment,
without negligence or malice on his part, an unavoidable loss occurs to his neighbor, it is
damnum absque injuria.
Broyles v. Speer, 51 A.2d 391 (Pa.Super. 1947): One who is in possession of land adjacent or in
close proximity to a public highway or sidewalk must exercise reasonable care to avoid injury to
traveling public arising from unnecessarily dangerous conditions created by him on the land,
where consequences of a failure to do so are reasonably foreseeable.
Irwin Savings & Trust Co. v. Pennsylvania R. Co., 37 A.2d 432 (Pa. 1944): The defense of no
liability for injury to trespasser is personal to owner of premises trespassed upon and does not
inure to benefit of strangers to title thereto, adjoining owners, or other trespassers.
Lavelle v. Grace, 34 A.2d 498 (Pa. 1943): A possessor of land adjacent or in close proximity to
a public highway must exercise reasonable care to avoid injury to traveling public arising from
unreasonably dangerous conditions created by him on the land, where the consequences of a
failure to do so are reasonably foreseeable. A possessor of land is subject to liability for bodily
harm to others outside the land caused by an activity carried on by possessor on the land which
he realizes or should realize as involving an unreasonable risk of bodily harm to others, under the
same conditions as though the activity were carried on at a neutral place.
Doerr v. Rand's, 16 A.2d 377 (Pa. 1940): Occupier of building was not insurer of safety of
persons passing on highway in front of premises but its duty was one of reasonable care.
Pope v. Reading Co., 156 A. 106 (Pa. 1931): Person in possession of property must exercise
greater care respecting safe- guarding of wall near street than wall not adjoining highway.
Fitzpatrick v. Penfield, 109 A. 653 (Pa. 1920): The defense of no liability for injury to a
trespasser is personal to the owner of the premises trespassed upon, and does not inure to the
benefit of strangers to the title, adjoining owners, or other trespassers. A person cannot escape
86
liability for negligence merely because a person injured is a trespasser on adjoining property,
where before the commission of the negligent act the presence of the trespasser was known to
him, or ought to have been known, and by the use of ordinary care the defendant might have
prevented the injury. Owner of wall facing street, left standing after a fire, is not an insurer of
the safety of persons and property upon street, but is liable only for want of ordinary care and
skill.
Grogan v. Pennsylvania R. Co., 62 A. 924 (Pa. 1906): A railroad company owning real estate
abutting on a street is not required to construct a fence sufficiently strong to provide against the
contingency of a crowd of trespassers coming on the inclosed property and pushing the fence
over on a person walking on the street, though some of the trespassers were the servants of the
company.
Pfeiffer v. Brown, 30 A. 844 (Pa. 1895): The general obligation of the owner is to use his
property so as not to injure others, and the right to injure another's land at all to any extent is an
exception to this general rule of property, and the burden is always on him who alleges the right
to bring himself within the exception.
2.
Act of God Defense
Shamnoski v. PG Energy a Div. of Southern Union Co., 765 A.2d 297 (Pa. Super. 2000): If a
negligent act and an act of God combine to produce damages that would not have occurred
absent negligence, and the negligent act was a substantial factor in causing the injury, liability
attaches.
In Bowman v. Columbia Telephone Company, 406 Pa. 455 (1962), the Pennsylvania Supreme
Court considered a case in which a motorist was injured when four telephone poles snapped and
fell on the roadway during a snowstorm. Plaintiff alleged negligent maintenance of the
telephone poles. The defendant asserted an Act of God defense claiming that the snowfall was
unprecedented and unforeseeable. The court stated:
Sometimes all the ingenuity and industry of man can not avail against the turmoil
and turbulence of the elements, but it is not enough to escape responsibility for
the owner of the instrumentality which inflicts damage to assert that the
instrumentality was propelled by the Supreme Being and that, therefore he could
shake the clinging snow of responsibility from off his hands.
Id. at 459.
3.
Governmental Liability
Mullin v. Com., 2001 WL 1807770 (Pa.Cmwlth.App. 2002): Liability for the design,
construction and maintenance of a highway rests solely with the governmental unit that had
jurisdiction over the highway at the time of the accident.
87
Davino v. Tyrone Township, 50 Pa. D. & C.3d 121 (Pa.Com.Pl. 1989): The Political Subdivision
Tort Claims Act, 18 Pa.C.S. § 8541 et seq., renders a township and its sewage enforcement
officer immune from liability in assumpsit actions arising from the issuance of a sewer permit
where the action is based upon underlying negligent conduct.
Baker v. Washington Tp. Mun. Authority, 47 Pa. D. & C.3d 339 (Pa.Com.Pl. 1987): A
municipality is not immune from suit for the death of an employee of an independent contractor
hired to construct a sewer under section 8542(b)(5) of the Political Subdivision Tort Claims Act,
42 Pa.C.S. § 8541(b)(5), for dangerous conditions of sewers, where an inspector the municipality
had placed at the work site observed, but failed to act on, a dangerous condition.
LaForm v. Bethlehem Tp., 499 A.2d 1373 (Pa.Super. 1985): City cannot be held liable for the
effects of an incidental increase in surface waters flowing in a natural channel where the increase
is owing to normal, gradual development in the city.
Schoenenberger v. Hayman, 465 A.2d 1335 (Pa.Cmwlth.App. 1983): Township and sewage
enforcement officer were jointly and severally liable for damages arising from faulty sewage
system despite township's assertion that there was no evidence to show that they were in any way
negligent in their selection of officer or that they knew officer was performing his tests in
negligent manner, since as employer of officer, township was liable for his torts committed in
course of his employment.
Johns v. City of Washington, 24 Pa. D. & C.3d 58 (Pa.Com.Pl. 1982): Pursuant to the Political
Subdivisions Torts Claims Act, 42 Pa.C.S.A. § 8541, et seq., a municipality is liable for a
dangerous condition caused by the operations of a sewer system provided claimant can prove
that the dangerous condition created a foreseeable risk of injury and that the municipality had
actual notice of the condition. A municipality is liable for damages resulting from injury to land
where during a twelve-year period the public sewer system had caused flooding on plaintiff's
premises ten or twelve times, and where, despite frequent complaints, both by the owners and
tenant, on only one occasion during all of those years did the municipality remove any dirt or
perform any maintenance work on its storm system in the vicinity.
Caputo v. Hughestown Borough, 60 Luz.L.R. 8 (Pa.Com.Pl. 1969): A municipality is not
required to provide sanitary or storm sewage facilities, although, having undertaken to do so,
negligent construction and maintenance will subject it to liability.
DeTillo v. Carlyn Const., Inc., 206 A.2d 376 (Pa. 1965): Knowledge by borough engineer of
sewer pipe which allegedly was negligently constructed by contractor and caused damage for
which homeowner sought to recover from borough on theory of breach of statutory duty to
inspect sewer lines and to indicate location thereof was properly imputed to borough. 53 P.S. §
47106.
Turano v. Borough of Sharpsburg, 90 Pitts.L.J. 177 (Pa.Com.Pl. 1942): In an action for damages
against a borough for injuries to plaintiff's property in the alleged negligent construction of a
sewer, the court, without a jury, entered judgment for defendant, where the work was done by
WPA under supervision of the borough officials, and the ground fell and caved in and subsided
88
along said street, destroying the lateral support of plaintiff's land and buildings. The costs and
expert's fees were divided equally between the parties.
Coates v. Board of Com'rs., of Lower Merion Tp., 54 Montg. 85 (Pa.Com.Pl. 1938): A township
is not liable for the consequences of the exercise of their discretion in turning water from the
road in a suitable place and along a grade or course along which it naturally flows, unless the
plan adopted is clearly unreasonable and unjustifiable.
Freedman v. Borough of West Hazleton, 146 A. 564 (Pa. 1929): City must construct sewer
improvement so as to avoid injury to property by emptying sewage thereon.
Graybill v. City of Lancaster, 7 Mun.L.R. 241 (Pa.Com.Pl. 1916): Municipal officers have
discretionary powers and municipality is not liable for error of judgment on their part in
execution of such powers, as in construction of inadequate sewers, where damage was not caused
by negligence in actual work of construction or by failure to maintain work after it was done or
failure to take notice of its insufficiency.
Herron v. Duquesne Borough, 34 Pa.Super. 231 (Pa.Super. 1907): In an action against a borough
to recover damages for injuries to real estate alleged to have been caused from the leaking of a
water main, the plaintiff cannot recover merely by showing that the borough had constructed and
maintained its own waterworks and pipes and that the injury was caused by a leakage from one
of the borough pipes. He must go further and show that the alleged injuries resulted from either a
faulty or negligent construction of the defendant's water pipe, or, the same being properly
constructed, that it had become out of repair and was and had been leaking so that the borough
was negligent in not repairing the pipe after notice, actual or constructive, of its condition, or that
the borough was guilty in failing to exercise such proper care, caution, and diligence as was
reasonable and prudent under the circumstances.
Portz v. Borough of Gilbertson, 4 Sch.L.R. 39 (Pa.Com.Pl. 1906): Where there is no evidence of
negligence municipal corporation is not liable in damages for failure to provide for drainage or
sewerage.
Cooper v. Scranton City, 21 Pa.Super. 17 (Pa.Super. 1902): Cities are not bound to provide
sewerage, and, if they do provide it, they are not liable for alleged insufficiency, but may be
responsible for negligent construction or repairs.
Fairlawn Coal Co. v. City of Scranton, 23 A. 1069 (Pa. 1892): Cities are not bound to provide
sewerage, and, if they do provide it, they are not liable for alleged insufficiency, but may be
responsible for negligent construction or repairs.
Philadelphia v. Gallagher, 16 Phila. 15 (Pa.Com.Pl. 1883): Liability of city where the sewer had
been changed without ordinance and contract made was considered in.
Fair v. City of Philadelphia, 88 Pa. 309 (Pa. 1879): Cities are not bound to provide sewerage,
and, if they do provide it, they are not liable for alleged insufficiency, but may be responsible for
negligent construction or repairs. The bureau of sewerage and drainage are the sole judges of the
89
necessity, character and grip of sewers constructed under their direction, and are not responsible
for damages caused by unusual rainfalls, etc.
City of Allentown v. Kramer, 73 Pa. 406 (Pa. 1873): Cities are not bound to provide sewerage,
and, if they do provide it, they are not liable for alleged insufficiency, but may be responsible for
negligent construction or repairs.
Carr v. Town of Northern Liberties, 35 Pa. 324 (Pa. 1860): Cities are not bound to provide
sewerage, and, if they do provide it, they are not liable for alleged insufficiency, but may be
responsible for negligent construction or repairs. The bureau of sewerage and drainage are the
sole judges of the necessity, character and grip of sewers constructed under their direction, and
are not responsible for damages caused by unusual rainfalls, etc.
Rhode Island
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
3.
Governmental Liability
Yankee v. LeBlanc, 819 A.2d 1277 (R.I. 2003): Evidence that after automobile accident the town
decided to make two-lane highway where accident occurred a one-way road did not establish that
town failed to remove a perilous situation of which it was aware, or that the town's regulation of
roadway was egregious.
Martinelli v. Hopkins, 787 A.2d 1158 (R.I. 2001): When state engages in an activity that a
private individual typically would not perform, such as the maintenance of state highways or the
issuance of state drivers' licenses, the public duty doctrine will shield the state from liability.
Rotella v. McGovern, 288 A.2d 258 (R.I. 1972): City, whose sanitation main had been servicing
homes on street, on which plaintiffs built their home in 1954, since 1932 and which assessed and
accepted payment of taxes from plaintiffs for 11 years without taking any action against
plaintiffs because of their technical "trespass" in never having obtained permit authorizing
plaintiffs to connect their house with city sewer, had constructive knowledge that plaintiffs'
home was tied into sanitation sewer main and owed duty of due care to plaintiffs in operation of
sewer system.
Eddy v. Granger, 31 A. 831 (R.I. 1895): When a city, in building a sewer as part of its sewerage
system, cut off a private drain which had been laid in a street by permission of the town before
its incorporation as a city, and the water and sewage which had flowed through the drain were in
consequence thrown back on the premises of the plaintiffs. Held, that an action would not lie
against the city for cutting off the drain and neglecting to provide for the drainage which had
previously flowed through it.
South Carolina
90
1.
Landowner’s Duty to Inspect/Prepare
While landowner in residential or urban area has duty to others outside property to prevent
unreasonable risk of harm from defective or unsound trees on premises, duty does not extend to
owner of trees of natural origin growing on rural, undeveloped land. Ford v. South Carolina
Dept. of Transp., 492 S.E.2d 811 (S.C.App. 1997): See also Israel v. Carolina Bar-B-Que, Inc.,
292 S.C. 282, 356 S.E.2d 123 (Ct. App. 1987), cert. denied, 293 S.C. 406, 360 S.E.2d 824
(1987).
2.
Act of God Defense
The South Carolina Supreme Court in Belue v. City of Greenville, 226 S. C. 192 (S. C. 1954),
addressed the Act of God defense in a case against a local municipality that had installed curbing
and gutters on a street adjacent to the plaintiff's residence. The installation caused excessive
surface water to accumulate (as a result of a five inch rain in three hours) on plaintiff's property.
The homeowner sued the municipality to recover damages to his home. Id. at 632. The Supreme
Court of South Carolina held that even if the five inches of rainfall in three hours was
unprecedented and exceptional, it did not relieve the defendant of liability because it was not the
sole cause of injury to the plaintiff's property. Id. The court stated the test as follows:
The principles embodied in all definitions is that the Act must be one occasioned
exclusively by the violence of nature and all human agency must be excluded
from creating or entering into the cause of the mischief. When the effect, the
cause of which is to be considered, is found to be in part the result of the
participation of man, whether it be from active intervention or neglect, or failure
to act, the whole occurrence is thereby humanized, as it were, and removed from
the operation of the rules applicable to the Acts of God.
Id. at 633, citing Mincey v. Dultmeier Manufacturing Co., 223 Iowa 252, 272 (1937).
3.
Governmental Liability
In order to bring a claim against a governmental agency, the South Carolina Tort Claims Act
requires that the claim be verified under oath. §15-78-80. The purpose of the oath is to
discourage questionable claims. Pollard v. County of Florence, 314 S.C. 397, 444 S.E.2d 534
(S.C. Ct. App. 1994), rehearing denied, certiorari denied. The statute that previously had a 180day notice requirement for municipalities, §5-7-70, was repealed in 1986 with the enactment of
the South Carolina Tort Claims Act, so that now there is a two-year period to file a notice. §1578-100 and §15-78-110.
Under the South Carolina Tort Claims Act, governmental entities - including cities, city police
departments, fire departments, and state colleges - are immune from liability for certain actions
or inactions. In particular, Code of Laws of South Carolina §15-78-60, sets forth the following
immunity provisions applicable to many subrogation cases:
91
The governmental entity is not liable for a loss resulting from:
….
(5) the exercise of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee;
(6) civil disobedience, riot, insurrection, or rebellion or the failure to provide the method
of providing police or fire protection;
….
(20) an act or omission of a person other than an employee including but not limited to
the criminal actions of third persons;
….
(25) responsibility or duty including but not limited to supervision, protection, control,
confinement, or custody of any student, patient, prisoner, inmate, or client of any
governmental entity, except when the responsibility or duty is exercised in a grossly
negligent manner;
These provisions explicitly protect governmental entities from (1) a decision not to perform a
service, (2) failure to provide police, (3) criminal actions of non-governmental employees, and
(4) failure of a school to protect against or control its students (unless grossly negligent). Courts
interpreting these immunity provisions have not been reluctant to grant governmental immunity.
See, e.g., Clyburn v. Sumter County School Dist. 17, 311 S.C. 521, 429 S.E.2d 862 (SC Ct. App.
1993), rehearing denied, certiorari granted, affirmed 317 S.C. 50, 451 S.E.2d 885 (SC 1993)
(School district was entitled to summary judgment in an action, brought by a student who was
attacked by a non-student on a school bus, which was based on the district’s alleged failure to
enforce §59-67-245 (penalties for interference with a school bus), even though the student had
been threatened on the bus prior to the attack and the district did not call the police, where the
district counseled the student and her assailant after the threat, and attempted to contact their
parents; the district exercised at least slight care and thus was not grossly negligent.); Adkins v.
Varn, 312 S.C. 188, 439 S.E.2d 822 (SC Ct. App. 1993) (Defendant county entitled to summary
judgment in an action to recover for the death of a bicyclist who was fatally injured when she
was chased into traffic by several vicious dogs, since the gravamen of the complaint was the
county’s failure to enforce an animal control ordinance, and thus the county was immune from
liability under §15-78-60); see also Wells v The City of Lynchburg, 331 S.C. 296, 501 S.E.2d
746, (S.C. Ct. App.1998) (barring homeowners suit against city for failure to maintain or inspect
inactive fire hydrants because §15-78-60(6) protects government entity from liability for failure
to provide police or fire protection or the method of providing police or fire protection)(citing
with approval City of Columbus v. McIlwain, 205 Miss. 473, 38 So.2d 921 (1949) (municipality
is not responsible for the destruction of property within its limits by a fire merely because,
through the negligence or other default of the municipality or its employees, the members of the
fire department failed to extinguish the fire regardless of whether this failure is due to an
insufficient supply of water, the interruption of the service during the course of a fire, the neglect
or incompetence of the firemen, the defective condition of the fire apparatus, negligence in
permitting fire hydrants to become clogged or defective, etc.); Ross v. City of Houston, 807
S.W.2d 336 (Tex.App.1990) (city's policy of inspecting fire hydrants was directly connected to
the city's method of providing fire protection; therefore, the state tort claims act exclusion from
governmental liability for claims arising from the failure to provide or the method of providing
92
fire protection barred suit by homeowner); Triplett v. City of Columbia, 96 S.E. 675 (S.C. 1918)
(although city can be liable for bodily injury or damages to person or property through defect in
street by reason of mismanagement, this does not render city liable to property owner made ill by
depression in street filled with stagnant water).
In South Carolina, “the Department of Transportation can be held liable for damages caused by
the fall of a tree standing within the limits of or in close proximity to a public highway”
depending on “whether the Department knew, or in the exercise of reasonable care should have
known, that the condition of the tree would make it hazardous to persons or property in the
immediate vicinity.” Ford v. South Carolina Department of Transportation, 328 S.C. 481, __,
492 S.E.2d 81, 814 (Ct. App. 1997). The Department, “because of its responsibility to the
public,” has a higher duty of care than does a landowner “to discovery and potentially remedy
potential obstructions, even those obstructions originating on private property.” Id.
South Dakota
1.
Landowner’s Duty to Inspect/Prepare
Easson v. Wagner, 501 N.W.2d 348 (S.D. 1993): Landowner must use his property with due
regard to rights of other landowners; if landowner uses his property in negligent manner or
creates conditions thereon which are unusual or unreasonable, causing damage to adjoining
landowners, he may be held liable.
2.
Act of God Defense
3.
Governmental Liability
Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915 (S.D. 1988): City acted in proprietary
capacity by undertaking construction and maintenance of sewer system and, therefore, could be
held liable in tort for wrongs committed in its exercise of that function. SDCL 9-48-2.
Shuck v. City of Sioux Falls, 113 N.W.2d 849 (S.D. 1962): City was liable for damage caused by
water which was cast upon property not by natural drainage but by city's work on street.
Tennessee
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
Butts v. City of South Fulton, 565 S.W.2d 879 (Tenn.App. 1977): Any misadventure or casualty
is said to be caused by "Act of God" when it happens by direct, immediate and exclusive
operation of forces of nature, uncontrolled or uninfluenced by power of man and without human
intervention, and it must be of such character that it could not have been prevented or escaped
from by any amount of foresight or prudence or by aid of any appliances which situation of party
might reasonably require him to use.
93
3.
Governmental Liability
Johnson v. Kraft-Phenix Cheese Corp., 94 S.W.2d 54 (Tenn.App. 1935): Inhabitants of city, who
invoke its power to construct, and who, after its completion, use, a local sewer improvement
which city has right to construct are not severally or jointly liable with city in suit for damages,
and injunction on account of effects of city's negligence in constructing and operating sewer.
Citizens who request construction of, and use, public improvements are not liable for negligence
of city in their construction or operation, because they have no command or control over manner
of construction or management thereof and test of liability for acts of another is power to
command or control manner of performance of those acts.
Texas
1.
Landowner’s Duty
Gonzales v. Trinity Industries, Inc., 7 S.W.3d 303 (Tex.App.Houston 1. Dist. 1999): Owners or
occupiers of premises abutting a highway have a duty to exercise reasonable care to avoid
endangering the safety of persons using the highway for travel and are liable for any injury
proximately resulting from their negligence.
De La Garza v. City of McAllen, 881 S.W.2d 599 (Tex.App.Corpus.Christi 1994): Owner or
occupier of property abutting highway has duty to exercise reasonable care not to jeopardize or
endanger safety of travelers.
Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189 (Tex.App.San.Antonio 1988): Owner or
occupier of premises abutting highway has duty to exercise reasonable care to avoid endangering
safety of persons using highway as means of travel and is liable for any injury that proximately
results from his negligence. Owner or occupier of property is not insurer of safety of travelers on
adjacent highway and is not required to provide against acts of third persons.
Portillo v. Housing Authority of City of El Paso, 652 S.W.2d 568 (Tex.App.El.Paso 1983):
Occupier of premises has no greater duty than does public generally regarding conditions
existing outside his premises and not caused by occupier.
Alamo Nat. Bank v. Kraus, 616 S.W.2d 908 (Tex. 1981): Owner or occupant of premises
abutting highway has duty to exercise reasonable care not to jeopardize or endanger safety of
persons using highway as means of passage or travel; owner or occupant is liable for any injury
that proximately results from his negligence and delegating this duty to independent contractor
does not relieve owner or occupant of liability for his own negligence.
Atchison v. Texas & P. Ry. Co., 186 S.W.2d 228 (Tex. 1945): Generally, owner or occupant of
premises abutting highway must exercise reasonable care not to jeopardize safety of persons
using highway as means of passage or travel and is liable for any injury, proximately resulting
from his wrongful acts in such respect, to any such person.
94
2.
Act of God Defense
McWilliams v. Masterson, 2003 WL 21800236 (Tex.App.Amarillo 2003): One is not responsible
for injury or loss caused by an act of God.An event may be considered an act of God when it is
occasioned exclusively by the violence of nature. For one to be insulated from liability due to an
act of God, it must be shown that: (1) the loss was due directly and exclusively to an act of
nature and without human intervention, and (2) no amount of foresight or care which could have
been reasonably required of the defendant could have prevented the injury. For purposes of
determining whether a party is entitled to jury instruction on act of God, the act of nature must be
unusual or unprecedented, and while it need not be the sole, greatest, or harshest violent act ever
experienced, it need only be so unusual that it could not have been reasonably expected or
provided against.
Luther Transfer and Storage, Inc. v. Walton, 296 S.W2d 750 (Tex. 1956): Flood case. Court
held that while the damages resulting from an Act of God are not ordinarily chargeable to
anyone, an exception to this general rule exists when the negligence of another person has
concurred with the Act of God. In this regard, the court stated:
The rule of non-liability of a ...company or person for damages caused by an
extraordinary and unprecedented flood is subject to the exception that negligence
in constructing and maintaining the structure concurring with an extraordinary
and unprecedented flood in causing damage to another, makes, ... [the] company
or person liable for damages, notwithstanding the fact that the flood was
extraordinary and unprecedented.
Id. at 498, quoting Fort Worth and D.C. Ry. Co. v. Kiel, 187 S.W.2d 371,373 (Tex. 1945).
3.
Governmental Liability
City of Galveston v. Garza, 2003 WL 21994741 (Tex.App.Waco 2003): To prove gross
negligence by city, as lessor and hotel, as lessee, of pier, as would be required to prevail given
that recreational use of pier by motorist and passenger imposed on city and hotel a duty owed to
trespasser, parents and estates of motorist and passenger were obligated to produce evidence that
city and hotel injured motorist and passenger by some contemporaneous activity or conduct.
V.T.C.A., Civil Practice & Remedies Code § 75.002.
Schafer v. Texas Dept. of Transpo., 2003 WL 21467007 (Tex.App.Austin 2003): Injured
motorist could not satisfy burden that application of state Tort Claims Act, preventing her from
bringing negligence action against state Department of Transportation (DOT), deprived her of
due process; motorist did not explain what "life, liberty, or property" was being threatened, how
application of Act deprived her of such interest, or why it was unreasonable, arbitrary or
capricious. U.S.C.A. Cont. Amend. 14.
Department of Transp. v. Sanchez, 75 S.E.2d 24 (Tex.App.San.Antonio 2001): As a general
rule, the State, including the Department of Transportation, is immune from suit unless immunity
has been waived. V.T.C.A., Civil Practice & Remedies Code § 101.021(2).
95
Fagan v. Ghade, 2001 WL 1107956 (Tex.App.Waco 2001): In the context of highway
construction projects, decisions about highway design and what type of safety features to employ
are discretionary policy decisions; however, the implementation of these policy decisions at the
subordinate or operational level is a ministerial function not shielded by official immunity.
City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997): Acts of city in constructing and maintaining
storm sewer are proprietary at common law, so that city may be liable for negligent performance
of those acts if they proximately cause damages, both because they are performed in city's
private capacity for benefit of those within its corporate limits, and because they are ministerial
functions.
Likes v. City of Tyler, 910 S.W.2d 525 (Tex.App.-Tyler 1995): City enjoys sovereign immunity
for negligent acts committed while engaged in governmental function of maintaining its sewer
system except to extent that Texas Tort Claims Act waives that immunity. V.T.C.A., Civil
Practice & Remedies Code § 101.021.
Shade v. City of Dallas, 819 S.W.2d 578 (Tex.App.-Dallas 1991): Operation and maintenance of
sanitary sewage system by a city is a governmental function, and municipality is liable for the
creation or maintenance of a nuisance in the course of nonnegligent performance of
governmental function. While engaged in governmental function of constructing, operating, and
maintaining its sewer system, city enjoys sovereign immunity for its negligent acts, except to the
extent that the Tort Claims Act waives that immunity; Act provides for recovery of personal
damages resulting from negligence of governmental unit. V.T.C.A., Civil Practice & Remedies
Code § 101.021(2).
Parr Golf, Inc. v. City of Cedar Hill, 718 S.W.2d 46 (Tex.App.-Dallas 1986): Property owner's
claim that he suffered mental anguish at the sight of sewage flooding his property as result of a
backup of the city's sewer fell within waiver of sovereign immunity. V.T.C.A., Civil Practice &
Remedies Code § 101.021.
Alexander v. City of Dallas, 552 S.W.2d 622 (Tex.Civ.App.Waco 1977): Where 15-year-old
boy, who was injured when bank of a drainage ditch maintained by city gave way and he fell into
deep hole, knew existence of ditch, that storm sewer was there, that emptying of storm sewer
into ditch had dug the hole into which he fell, that the ditch around storm sewer where he
determined to push stolen bicycle over the edge was eroding, and knew that pieces of concrete
sewer had been caused by erosion to fall into the ditch, city owed him no duty to eliminate or to
warn him of such conditions.
Utah
1.
Landowner’s Duty to Inspect/Prepare
2.
Act of God Defense
96
Dougherty v. California-Pacific Utilities Co., 546 P.2d 880 (Utah 1976): Even if storm had been
of such a nature as to be unexpected and unforeseeable and therefore classifiable as "an Act of
God," that would not necessarily insulate defendant from liability if defendant were negligent
and his negligence concurred with act of God in such a way that it was proximate cause of
damage to another. (Per Crockett, J., with one Judge concurring and one Judge concurring in
result.) Whether an occurrence should be classified as "an Act of God," thus precluding liability,
depends on whether storm was of such magnitude and severity that it was not reasonably to be
foreseen and guarded against by the traditional, reasonable and prudent man under the
circumstances. (Per Crockett, J., with one Judge concurring and one Judge concurring in result.)
3.
Governmental Liability
Rose v. Provo City, 469 Utah Adv. Rep. 31 (Utah.App. 2003): A city's duty to exercise ordinary
care to keep streets which it has opened for travel and which it has invited the public to use in a
reasonably safe condition for travel is most frequently applied to accidents on city sidewalks, but
also applies to city ways. A city's duty to maintain its city ways in a reasonably safe condition
for travel is nondelegable.
Jordan v. City of Mt. Pleasant, 49 P. 746 (Utah 1897): While it is the duty of city authorities to
use all reasonable means and precautions to prevent injurious consequences to its people and to
property from floods which they should anticipate, in doing so they must use all reasonable
means and precautions not to cause the destruction of or injury to other property.
Kiesel & Co. v. Ogden City, 30 P. 758 (Utah 1892): A city is liable for injuries caused by an
obstruction in a sewer which was placed there under the supervision of the city engineer, or of
which he had actual or constructive notice.
Levy v. Salt Lake City, 16 P. 598 (Utah 1887): The ordinance passed pursuant to Comp. Laws
1876, § 55, empowering Salt Lake City to distribute, control, and regulate water flowing into the
city, etc., requires that the applicant for the use of water, before he can receive his allotment,
must pay his assessment and the cost of constructing any necessary ditch; and also that the
location, construction, and repair of the ditches shall be under control of the city. Held, that the
city is liable for an injury caused through its neglect to keep in proper repair a ditch constructed
over private property. A city empowered by its charter to control and regulate the use of water,
and assuming to do so, is liable for damages occasioned by its negligence in such regulation; and
this, though the liability is not expressly imposed by statute.
Vermont
1.
Landowner’s Duty to Inspect/Prepare
Baisley v. Missisquoi Cemetery Ass'n, 708 A.2d 924 (Vt. 1998): An abutter must keep his
property from becoming a source of danger to those on adjoining lands by reason of any defect
in construction, use, or repair, so far as exercise of care of prudent man can guard against such
danger.
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Butterfield v. Community Light & Power Co., 49 A.2d 415, (Vt.,1946): An abutter must keep
his property from becoming a source of danger to traveling public by reason of any defect in
construction, use, or repair, so far as exercise of care of prudent man can guard against such
danger.
Murray v. Nelson, 122 A. 519, (Vt.,1923): It is the duty of an abutter to keep his property from
becoming a source of danger to the traveling public by reason of any defect either in
construction, use, or repair, so far as the exercise of the care of a prudent man can guard against
it.
2.
Act of God Defense
3.
Governmental Liability
Lane v. State, 2002 WL 1940970 (Vt. 2002): A breach of state's duty to maintain its roads in
reasonably safe condition occurs where the state fails to correct a defect and has either actual or
constructive notice of the existence of a defect, and a reasonable amount of time in which to
correct it.
Stoneking v. Orleans Village, 243 A.2d 763 (Vt. 1968): In the construction and maintenance of
sewers and drains, a municipal corporation is required to exercise needful prudence,
watchfulness, and care.
Town of South Burlington v. American Fidelity Co., 215 A.2d 508 (Vt. 1965): Neither statute
giving injured person right to recover for insufficiency or want of care of culvert, nor
municipality's liability policy extending coverage in such case, applies when hole causing
accident derives solely from condition of street itself, without operating causation of leaky
culvert. 19 V.S.A. § 1371; 29 V.S.A. § 1403.
Sanborn v. Village of Enosburg Falls, 89 A. 746 (Vt. 1914): The liability of towns for
maintaining insufficient culverts, etc., only extends to liability for injuries to travelers.
Virginia
1.
Landowner’s Duty
In Virginia, “[t]he law requires that every person so use his own property as not to injure the
property of another, sic utere tuo ut alienum non laedas.” Akers v. Mathieson Alkali Works, 151
Va. 1, 144 S.E. 492 (1928). As stated in City of Portsmouth v. Culpepper, 192 Va. 362 (1951),
“Any accident due to natural causes directly and exclusively without human intervention, such as
could not have been prevented by any amount of foresight and pains, and care reasonably to have
been expected.”
2.
Trespass and Nuisance
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In Akers v. Mathieson Alkali Works, 151 Va. 1, 144 S.E. 492 (1928), for example, the plaintiff
sued under theories of continuing trespass and nuisance for leakage of chemical “muck” from the
defendant’s storage basin. Defendant argued that the right of recovery was predicated upon a
finding of negligence by defendant. The Virginia Supreme Court rejected that argument, stating:
The law requires that every person so use his own property as not to injure the
property of another …. When defendant permitted the muck to escape from its
land and injure land of the plaintiff, without his fault, defendant was liable for the
damages sustained by the plaintiff. The loss in such cases must be borne by
plaintiff or defendant and it seems just that it fall upon the defendant by whose
conduct it was made possible.
3.
Act of God Defense
Virginia law does not allow the Act of God defense where the defendant’s negligence was a
concurring force that proximately contributed to the damages. As explained long ago by the
Supreme Court of Virginia in E.T. White v. Southern Railway Co., 151 Va. 302, 320 (1928):
It is universally agreed that, if the damage is caused by the concurring force of the
defendant’s negligence and some other cause for which he is not responsible,
including the ‘act of God,’ or superior human force directly intervening, the
defendant is nevertheless responsible, if his negligence is one of the proximate
causes of the damage . . ..
The Supreme Court of Virginia further discussed the Act of God defense in City of Portsmouth
v. Culpepper, 192 Va. 362 (1951). In Culpepper, Vernon Culpepper sued the City of Portsmouth
for damage to his crops that occurred when a city-maintained canal overflowed and flooded
Culpepper’s farm in 1948. Id. at 365. Years before the flood, the city attempted to replace a
washed-out dam located within the canal by constructing an earthen dam across the canal with
dirt from the eastern bank of the canal. Id.
The removal of the dirt by the city lowered the bank to normal ground level for a distance of one
hundred yards. Id. at 365-66. Before the city finished the dam, however, it was enjoined from
completing its work and ultimately abandoned the project, leaving the earthen dam unfinished.
Id. at 366. When severe rainstorms hit the area in 1948, water in the canal was obstructed by the
partially finished dam and overflowed the canal at the very point where the city had lowered its
eastern bank, ultimately flooding Culpepper’s farm. Id.
The City of Portsmouth raised the Act of God Defense and introduced evidence at trial showing
that rain that caused the flood was the heaviest downpour on record. Id. Specifically, the City
showed that the rainfall causing the flood was “in excess of anything shown since the Weather
Bureau was created in 1879.” Id. The jury returned a verdict in favor of Culpepper and the City
of Portsmouth appealed.
The Supreme Court of Virginia upheld the jury’s verdict and specifically rejected the City’s Act
of God defense stating: “Undoubtedly the record shows that the rainfall in question was
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extremely severe, but under the circumstances and facts in this case, it cannot be termed an ‘Act
of God’. It has been held in Virginia since 1849 that all human agency is to be excluded from
creating or entering into the cause of mischief, in order that it may be deemed an Act of God.”
Id. at 367 (citing Friend v.Woods, 6 Gratt. (47 Va.) 189) (emphasis added).
The court pointed to the following definition of “Act of God” in support of its reasoning: “Any
accident due to natural causes directly and exclusively without human intervention, such as could
not have been prevented by any amount of foresight and pains, and care reasonably to have been
expected.” Id.; see also Ellerson v. Chesapeake & Ohio Railway Co., 149 Va. 809 (1928)
(defining “Act of God” as such an unusual and extraordinary manifestation of the forces of
nature that it could not under normal conditions have been anticipated or foreseen).
Accordingly, defendants raising the Act of God defense in Virginia have the burden of
establishing that no human intervention entered into the cause of a loss and that the so-called Act
of God was so unusual and extraordinary that it could not have been foreseen.
4.
Government Liability
Virginia has a specific six-month notice requirement for actions against a governmental
agency. Virginia Code 1950 § 8.01-222. Fortunately, in Miles v. City of Richmond, 373
S.E.2d 715 (Va. 1988), the Virginia Supreme Court found the notice-of-claim statute,
Virginia Code 1950 § 8.01-222, to be mandatory but not jurisdictional. The statute is to
be construed liberally, and substantial compliance with its terms is sufficient. The statute
reads as follows:
§ 8.01-222 Notice to be given cities and towns of claims for damages for
negligence.
No action shall be maintained against any city or town for injury to any person or
property or for wrongful death alleged to have been sustained by reason of the
negligence of the city or town, or of any officer, agent or employee thereof, unless
a written statement by the claimant, his agent, attorney or representative of the
nature of the claim and of the time and place at which the injury is alleged to have
occurred or been received shall have been filed with the city attorney or town
attorney, or with the mayor, or chief executive, within six months after such cause
of action shall have accrued, except if the complainant during such six-month
period is able to establish by clear and convincing evidence that due to the injury
sustained for which a claim is asserted that he was physically or mentally unable
to give such notice within the six-month period, then the time for giving notice
shall be tolled until the claimant sufficiently recovers from said injury so as to be
able to give such notice; and statements pursuant to this section shall be valid,
notwithstanding any contrary charter provision of any city or town.
This must be sent by certified mail, return receipt requested.
Virginia deems a governmental entity immune for governmental functions but not for proprietary
functions. While the planning, designing, laying out, and construction of streets and roads are
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governmental functions, the routine maintenance of existing streets and roads is proprietary.
Bialk v. City of Hampton, 242 VA 56, 58, 405 S.E.2d 619 (1991); Taylor v. City of
Charlottesville, 240 Va. 367, 370-71, 397 S.E.2d 832 (1990).
For sewage systems, the general rule is in Virginia that the maintenance and operation of a sewer
system is a governmental function for which a municipality is entitled immunity from tort
liability. See, e.g., Gayda v. Gibbs, 45 Va. Cir. 176, 1998 Va. Cir. LEXIS 122 (Va. Cir. Ct. City
of Norfolk 1998); Mitchum v. Albemarle County Service Authority, 34 Va. Cir. 208, 1994 Va.
Cir. LEXIS 14 (Va. Cir. Ct., Albemarle County 1994) (Sewage authority acted as municipal
corporation performing governmental functions in servicing a manhole which was part of its
sewer system, and was thus entitled to immunity from liability and tort: “If collecting garbage
and removing trash and debris are governmental functions, then collecting and disposing of other
forms of waste must also be.”); Stover v. Keystone Builders, Inc., 36 Va. Cir. 595, 1993 Va. Cir.
LEXIS 717 (Va. Cir. Ct., Fairfax County 1993); Linda Lee Corp.v. Covington Company, 36 Va.
Cir. 590, 1993 Va. Cir. LEXIS 716 (Va. Cir. Ct. Bedford County 1993) (The doctrine of
sovereign immunity applies to the maintenance and operation of a storm water drainage system
by a municipal corporation.); Wilshin v. City of Fredericsburg, 26 Va. Cir. 329, 1992 Va. Cir.
LEXIS 577 (Va. Cir. Ct., City of Fredericksburg 1992) (Plaintiff’s, neighbors sued for damages
caused by sewage backup, claiming the system malfunctioned, backed up or overflowed causing
raw sewage to invade the lower levels of their homes; court held, “If collecting garbage and
removing trash and debris are governmental functions, then collecting and disposing of other
forms of waste must also be. In cities--which almost by definition are densely populated--where
drain fields and other individualized modes of sewage disposal are impractical of not impossible,
it is difficult to imagine anything more tied to public safety and safety for the benefit of all than
the provision of a sanitary sewer system. . . . Therefore, the Court is of the opinion that in
Virginia the operation and maintenance of a sewer system is a governmental function.”); Jackson
v. City of Danville, 26 Va. Cir. 488, 1990 Va. Cir. LEXIS 444 (Va. Cir. Ct., City of Danville
1990) (Plaintiff alleged that her goods and property were damaged by sewage which backed up
and flowed into her home as a result of the negligence of the City: “In this case, the City of
Danville’s operation of a sanitary sewer system, in the Court’s opinion, falls within the
Protective Doctrine of Sovereign Immunity. For this reason, the Court is of the opinion that the
City of Danville is entitled to summary judgment as requested in its Motion.”).
However, a few cases are distinguishable from the general rule. In Mjornell v. Town of Front
Royal, 41 Va. Cir. 399, 1997 Va. Cir. LEXIS 44 (Va. Cir. Ct., Warren County 1997), the court
held that a municipality is immune from liability for an alleged negligent design of a sewer
system, but may be liable for damages caused by its negligence with regard to the construction,
operation and maintenance of water and sewer systems, which activities are proprietary
functions. In addition, the case of Hampton Road’s Sanitation District v. McDonnell, 234 Va.
235, 360 S.E.2d 841, (Va. 1987) allowed recovery where the action of the municipality was done
as a continuing trespass. Similarly, in McConnell v. Board of Supervisors of Fairfax County, 20
Va. Cir. 5, 1989 Va. Cir. LEXIS 402 (Va. Cir. Ct., Fairfax County 1989), the court allowed
plaintiff to maintain a cause of action for inverse condemnation in the case of an alleged
continuing trespass. The case involved a storm drain which backed up from time to time,
causing flooding which damages Plaintiffs’ nearby property. The court held as follows:
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Plaintiffs alleged that the Defendant is responsible for this flooding since they are
charged with the allegation of designing and maintaining this storm sewer system.
In their second amended petition, Plaintiffs allege one court for declaratory relief
and one count for inverse condemnation. They presently seek leave to add a
count for trespass. … [A] claim for inverse condemnation is essentially a claim
that the government has ‘taken’ property without the due process of law in
violation of the Fifth Amendment to the U.S. Constitution. As explained in
Barnes v. United States, 538 F2d 865 (Ct. Cl. 1976), case law has developed the
law of eminent domain as applied to instances of flooding. Property may be taken
by the invasion of water where subjected to “intermittent, but inevitably recurring,
inundation due to authorized government action.” Id. at 870, citations omitted. A
cause of action for unconstitutional taking therefore does not accrue until the
flooding becomes inevitable. . . . [T]he Court simply cannot say on the basis of
this record that flooding became inevitable at least three years prior to the
commencement of this suit, as the defendant contends. Rather, this poses a
question of fact to be determined at trial.
As to post-disaster remediation, in Fenon v. City of Norfolk, 203 Va. 551, 125 S.E.2d 808
(1962), the Virginia Supreme Court considered a tort claim against a city for failure to clear a
tree from the road and found the city immune. Plaintiff claimed injury for striking a tree that fell
by a storm and was obstructing a street. The fallen tree was one of some 800 downed trees
blocking the streets of Norfolk in the wake of Hurricane Donna, which struck the area in 1960.
The Court held that the city's effort to cope with the "emergency situation" resulting from the
storm was the exercise of a governmental function, not routine street maintenance. 203 Va. at
555-56.
Similarly, in Bialk v. City of Hampton, 242 Va. 56, 58, 405 S.E.2d 619, 620 (1991), the City of
Hampton was deemed immune from plaintiff’s suit for personal injuries received when he was
struck by snow thrown from the blade of a snowplow which was being operated by a city
employee. The Court cited Fenon and held that the City of Hampton was entitled to sovereign
immunity for negligence committed during its snow-removal efforts. Specifically, the court
stated:
Because the City's snow-removal operations in this case were acts done for the
common good in coping with an emergency, they constituted the exercise of a
governmental function. Although that function coincided with the City's
proprietary function of keeping its streets in safe condition for travel, where those
functions coincide, "the governmental function is the overriding factor." The trial
court correctly ruled, therefore, that the City was entitled to governmental
immunity.
242 Va. At 59
However, the case of Burson v. City of Bristol, 10 S.E.2d 541 (Va. 1940) found the city liable in
post-fire repair efforts to a building. Five days after a fire had been extinguished members of
city volunteer fire department were employed to pull down walls of burned building to make
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streets safe for passers-by. The court held that the members of volunteer fire department were
not acting in the discharge of their duties as firemen so as to relieve city from liability for
damages to adjoining property caused by firemen's negligence, nor was city relieved from
liability under the statute relating to the destruction of houses to prevent the spread of fire. Code
1936, §§ 3133-3135. See also City of Richmond v. Wood, 63 S.E. 449 (Va. 1909) (no liability
for extraordinary flood); City of Richmond v. Gallego Mills Co., 45 S.E. 877 (Va. 1903) (city
has duty, from the time it acquires a sewer, to maintain it in a reasonably safe condition, despite
former owner’s prior upkeep or lack thereof); Miller & Meyers v. City of Newport News, 44 S.E.
712 (Va. 1903) (city has right to build drainage system but must exercise reasonable care and
skill in doing the work).
Washington
1.
Landowner’s Duty to Inspect/Prepare
Zuniga v. Pay Less Drug Stores, N.W., 917 P.2d 584 (Wash.App.Div.1 1996): In context of
homeless person's suit against premises lessee to recover for injuries sustained when lessee's
truck ran over him as he lay sleeping near lessee's loading dock, duty associated with ownership
of land was not replaced by duty to use reasonable care by virtue of fact that driver of truck was
not on lessee's property when accident occurred; common-law categories of invitee, licensee, and
trespasser consider the location of the plaintiff at the time of the accident, and the location of the
landowner or his agents is not relevant.
Kelly v. Gifford, 386 P.2d 415 (Wash. 1963): Abutting property owner must use and keep his
premises so as not to render adjacent highways unsafe for ordinary travel.
Mills v. Orcas Power & Light Co., 355 P.2d 781 (Wash. 1960): One must exercise reasonable
care to maintain his property so as not to injure those using adjacent highway.
2.
Act of God Defense
Burton v. Douglas County, 539 P.2d 97 (Wash.App.Div.3 1975): When two causes combine to
produce injury, both of which are, in their nature, proximate and contributory to the injury, one
being culpable negligent act of defendant, and other being an act of God for which neither party
is responsible, then defendant is liable for such loss caused by his own act concurring with the
act of God, provided loss would not have been sustained by plaintiff but for such negligence of
defendant.
3.
Governmental Liability
Minahan v. Western Washington Fair Ass’n, 73 P.3d 1019 (Wash.App.Div.2 2003): School
district and county fairground association had no duty to district employee, who was injured by
an intoxicated driver while working for employer on high school dance at county fairgrounds, to
make dangerous parking condition where employee was hit by driver safe, where dangerous
condition existed on public street bordering fairgrounds. School district and county fairground
association had no duty to district employee, who was injured by an intoxicated driver while
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working for employer on high school dance at county fairgrounds, to reasonably protect against
driver's criminally reckless conduct, where driver's conduct did not occur on premises of
fairgrounds but on public street bordering fairgrounds. Restatement (Second) of Torts § 344.
Owen v. Burlington Northern Santa Fe Railroad, Inc., 56 P.2d 1006 (Wash.App.Div.1 2002):
City's allegation that motorist and passenger had been negligent, regarding train's collision with
motorist's and passenger's vehicle at railroad crossing in city, did not excuse city from its duty to
build and maintain its roadways in a condition that was reasonably safe for ordinary travel. A
municipality owes a duty to all persons, whether negligent or fault-free, to build and maintain its
roadways in a condition that is reasonably safe for ordinary travel.
Keller v. City of Spokane, 44 P.2d 845 (Wash. 2002): A municipality owes a duty to all persons,
whether negligent or fault-free, to build and maintain its roadways in a condition that is
reasonably safe for ordinary travel; overruling Wick v. Clark County, 86 Wash.App. 376, 936
P.2d 1201. West’s RCWA 4.96.010.
Howe v. Douglas County, 43 P.3d 1240 (Wash. 2002): Statute allowing governments to limit
harms caused by private developers who constructed improvements that are accepted by
government is limited to plat subdivisions subject to a dedication, to damage occasioned to the
"adjacent land," to roads and the associated drainage systems, and to infrastructure that is already
established. West's RCWA 58.17.165.
Rothweiler v. Clark County, 29 P.3d 758 (Wash.App. Div. 2 2001): A municipality has no
common law duty to drain surface water.
Patterson v. City of Bellevue, 681 P.2d 266 (Wash.App. 1984): As general rule, municipality is
not liable for increased flow of surface water caused by opening of streets, building of houses,
and other private development; any problem in such regard has its solution in concerted political
action rather than in courts.
Sigurdson v. City of Seattle, 292 P.2d 214 (Wash. 1956): Where city assumes sole control and
management of water drainage system, the city becomes liable for injuries resulting therefrom,
and it is immaterial by whom the system was constructed. Where, upon construction of water
drainage system by federal relief agency, city had assumed its sole management and control, and
city had frequently, extensively repaired system during past 18 years, and private property was
not shown to have been benefited more than incidentally to its primary public purpose of
preventing landslides onto and flow of water upon city streets, city had duty to maintain system,
and was liable to landowner whose property was damaged as result of city's negligent
performance of duty.
Yakima Central Heating Co. v. City of North Yakima, 149 P. 341 (Wash. 1915): Where water
leaked from flumes maintained by the city above the pipes of a heating plant, causing excessive
condensation, the injury was not actionable, as it resulted from natural conditions.
Liability for Failure to Maintain Fire Break:
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In Autery v. United States, No. 04-35105,
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A0B18BFB1437346F8825707A004DE706/$f
ile/0435105.pdf?openelement , (Sept. 12, 2005), the Ninth Circuit Court of Appeals reviewed
actions arising out of a wildfire in Washington State.
Numerous individual and corporate victims of a large wildfire in southeastern
Washington State appeal the district court’s dismissal for lack of subject matter jurisdiction of
their suit brought under the Federal Tort Claims Act (FTCA) 28 U.S.C. §§ 1346(b), 2671-80.
The suit sought substantial damages, alleging, among other things, negligence against the United
States in not maintaining firebreaks. The district court dismissed based upon the FTCA’s
independent-contractor and discretionary-function exceptions.
The Ninth Circuit agreed with the district court that relevant decisions regarding fire
prevention were encompassed in the government’s contracts with Fluor Daniel Hanford, Inc.,
a.k.a. Fluor Hanford, Inc., (Fluor) and Fluor’s corresponding subcontract with DynCorp TriCities Services, Inc. (DynCorp). The action was therefore barred by the independent-contractor
exception to the FTCA. See 28 U.S.C. § 2671 (“As used [in the FTCA] the term ‘Federal
agency’ . . . does not include any contractor with the United States”). Because the court affirmed
on that ground, It did not reach whether the suit is also barred by the discretionary-function
exception in 28 U.S.C. § 2680(a).
The suit arises from the 24 Command Wildland Fire (a.k.a. the 24 Command Fire), which
burned from June 27 to July 1, 2000. The wildfire was triggered by an automobile crash on
Washington State Route 24 (SR-24). SR-24 is located on an easement over federal property
granted by the United States to the State of Washington. The wildfire eventually charred some
164,000 acres of public and private lands on and near the United States Department of Energy’s
(DOE’s) Hanford Site. The Hanford Site encompasses over 560 square miles of government
property in the southeastern part of Washington in Benton County near Richland.
The Hanford Site includes within it the 120-square-mile Fitzner-Eberhardt Arid Lands
Ecology Reserve (ALE Reserve or ALE). The ALE Reserve is an ecologically sensitive area
with significant natural and cultural resources. The DOE transferred, or began transferring,
management of the ALE to the United States Fish and Wildlife Service (FWS) in June of 1997.
The terms of the transfer are set forth in a June 20, 1997, Permit and Memorandum of
Understanding (MOU) between the DOE and FWS.
Specific control of the ALE is important here because the fire started on the ALE — or,
more particularly, on SR-24 — and quickly spread to the ALE. Plaintiffs’ primary FTCA claim
is that the United States (either the DOE or the FWS) negligently maintained firebreaks near SR24 along the ALE and such negligence caused fire to spread from SR-24 onto the ALE and
ultimately to Plaintiffs’ properties. The DOE had a large (over $2.8 billion, as of August 27,
1999) contract with Fluor for “planning, managing, integrating, operating and implementing” a
wide range of activities at the Hanford Site. In turn, Fluor subcontracted with DynCorp, to
provide certain services, including “Emergency Services.”
The subcontract was effective October 1, 1996, and was modified effective March 27,
2000 (although there apparently has been a similar contractual relationship from at least 1984).
The subcontract defines “Emergency Services” as:
1. Fire Protection Engineering.
2. Fire Department Emergency Response, including:
a. Fire Suppression.
b. Rescue.
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c. Emergency Medical/Ambulance.
d. Hazardous Material Spill Response.
e. Incident Command.
3. Fire Protection System Inspection and Maintenance.
4. Fire Prevention.
The Hanford Fire Department (HFD) was a subsidiary of DynCorp during the relevant
period. Thus, HFD is a private entity and is the subcontractor retained to provide “Emergency
Services.” HFD’s fire chief at relevant times was Don Good.
The government argued that the plain terms of these contracts established that the DOE
contracted with Fluor, which subcontracted with the HFD, to provide fire prevention and fire
protection on the Hanford Site, including the ALE. Accordingly, the government contended (and
the district court agreed) that the independent-contractor exception to the FTCA immunizes the
United States from the alleged negligence that could have contributed to the 24 Command Fire.
West Virginia
1.
Landowner’s Duty to Inspect/Prepare
Andrick v. Town of Buckhannon, 421 S.E.2d 247 (W.Va. 1992): Business operator's or owner's
duty of care to invitees using adjacent property arises when operator or owner has actual
constructive knowledge that invitees regularly use adjacent property in connection with its
business, and liability attaches if it is shown that operator or owner was aware of hazard that
caused injury.
Cox v. U.S. Coal & Coke Co., 92 S.E. 559, (W.Va. 1917): A coal company, knowing that
pedestrians frequently use a railway company's main line nearby its coal tipple located on a side
track 10 or 12 feet above the main line, whose custom is to pick the slate out of the coal as it is
being loaded in the cars at the tipple and cast it in the direction of the railroad, is bound to use
reasonable care to avoid injury to such pedestrians.
2.
Act of God Defense
3.
Governmental Liability
Wisconsin
1.
Landowner’s Duty to Inspect/Prepare
Hass v. Chicago & N. W. Ry. Co., 179 N.W.2d 885 (Wis. 1970): Duty of landowner in respect
to one not on his land but who is injured by activities that originate there is simply one of
reasonable care.
Schiro v. Oriental Realty Co., 76 N.W.2d 355 (Wis. 1956): A declevity, 19 1/2 inches wide and
with a three inch slope, in plaintiffs' lawn, caused by breach in defendant's retaining wall, was
not necessarily too insignificant a defect to be actionable where plaintiff fell and was injured.
106
Delaney v. Supreme Inv. Co., 29 N.W.2d 754 (Wis. 1947): Under the common law, a building
abutting on a highway must be so constructed and maintained that it will not fall and injure
persons lawfully on the highway, and although the owner of person in control of such structure is
not an insurer, he must use reasonable care in construction and maintenance thereof and is bound
to inspect from time to time. Action by pedestrian for injuries sustained when struck by glass
block falling from front of public building while she was walking along the street with no
intention of entering the building should have been tried upon the issues of common law
negligence and not upon the safe-place statute. St.1945, §§ 101.01(5, 11, 12), 101.06.
Cook v. Rice Lake Milling & Power Co., 130 N.W. 953 (Wis. 1911): A person has the right to
use his own property in the usual conduct of his business with the usual incidents to such use,
and is only required to exercise ordinary care in order to relieve him from liability for damages
on account of injuries incidentally resulting to a traveler on an adjacent highway. Ordinary care
in using one's property contemplates that the owners of land abutting on a highway may freely
use the same in the regular conduct of their business, not creating unusual or unnecessary noises
or appearances known to be liable to dangerously disturb passing horses under control of persons
of ordinary care and capability.
2.
Act of God Defense
3.
Governmental Liability
Wyoming
1.
Landowner’s Duty to Inspect/Prepare
Timmons v. Reed, 569 P.2d 112 (Wyo. 1977): Landowner in close proximity to public highway
must exercise reasonable care to avoid injury to traveling public arising from unnecessarily
dangerous conditions created by him on land, where consequences of failure to do so are
reasonably foreseeable, and violation of this duty constitutes negligence.
2.
Act of God Defense
Ely v. Kirk, 707 P.2d 706 (Wyo. 1985): An act of God is any action due directly and exclusively
to natural causes without human intervention and which could not have been prevented; there
can be no combination of an act of God and fault of man; for the act of God defense to be
available, the act of God must be the sole cause of the injury.
Cox v. Venieuw, 604 P.2d 1353 (Wyo. 1980): Act of God doctrine would not encompass
physical afflictions or medical problems of a defendant. Defense of an act of God should not be
considered in any case in which recovery is sought upon a theory of negligence.
Wheatland Irr. Dist. V. McGuire, 537 P.2d 1128 (Wyo. 1975): Landowner is not absolutely
liable for damage resulting from extraordinary use of his land if the damage is due to acts of
God, public enemies or third persons. Landowner is not absolutely liable for damage resulting
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from extraordinary use of his land if the damage is due to acts of God, public enemies or third
persons.
Sky Aviation Corp. v. Colt, 475 P.2d 301 (Wyo. 1970): Ordinary forces of nature, such as winds
which are usual at time and place, are conditions which reasonably could have been anticipated
and will not relieve from liability a negligent defendant relying on defense of act of God. If
negligence of defendant directly contributed to injury of plaintiff, so that it is reasonably certain
that force of nature alone would not have sufficed to produce injury, defendant cannot escape
liability on ground that injury was allegedly caused by act of God. Ordinary forces of nature,
such as winds which are usual at time and place, are conditions which reasonably could have
been anticipated and will not relieve from liability a negligent defendant relying on defense of
act of God. Term "act of God" is any accident, due directly and exclusively to natural causes,
without human intervention, which by no means of foresight, pains or care, reasonably to have
been expected, could have been prevented. An "act of God" is the cause of an injury to person or
property, where such injury is due directly and exclusively to natural causes, which are without
human intervention, and which could not have been prevented by exercise of reasonable care and
foresight.
3.
Governmental Liability
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